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PER CURIAM.
[]In 2009, appellant George Hickey was found guilty by a jury of rape, kidnapping, and first-degree terroristic threatening. He was sentenced to an aggregate term of life imprisonment. We affirmed. Hickey v. State, 2010 Ark. 109, 2010 WL 745919. Following the issuance of our mandate, appellant timely filed a pro se petition for postconviction relief in the circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). In his petition, appellant asserted that defense counsel was ineffective in failing to do the following: (1) consult with and call as a witness a medical expert regarding the lack of appellant’s DNA evidence found on the victim; (2) investigate, develop, and present to the jury the lack of physical evidence in the case; (3) investigate, develop, and present to the jury a timeline of the incident; (4) call appellant as a witness on his own behalf. The circuit court denied the relief requested without an evidentiary hearing, and appellant now appeals from the circuit court’s order. We affirm.
|⅞⅛ an appeal from a circuit court’s denial of a petition under Rule 37.1, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). A finding 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 commit ted. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
The Strickland standard is a two-prong test. When a convicted defendant complains of ineffective assistance of counsel, he must first show that counsel’s performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).
There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel, which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006). The petitioner | ¡¡must show that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt and that the decision reached would have been different absent the errors. Id.
Arkansas Rule of Criminal Procedure 37.3(a) provides, “If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” The trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). If the trial court fails to make findings as required by Rule 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000).
I. Failure to Obtain and Present Testimony of a Medical Expert
Appellant first argues that the circuit court erred in denying his claim that defense counsel was ineffective in failing to consult with and elicit the testimony of a medical expert regarding the lack of appellant’s DNA found on the victim. In his petition for postconviction relief, appellant alleged that a medical expert would have testified that appellant’s DNA was not found on the victim and to the probability of whether a perpetrator’s DNA evidence would be found on a victim after being vaginally and orally raped for hours, as the victim in the instant case testified. The circuit court found this allegation to be conclusory and denied relief. We agree.
|4The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Jones v. State, 2011 Ark. 523, 2011 WL 6091468; Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). In the instant case, appellant failed to offer any evidence that his counsel was ineffective for failing to elicit the testimony of a medical expert regarding the lack of his DNA found on the victim and further failed to establish that a reasonable probability existed that the outcome of the trial would have been different had his attorney done so. To the contrary, the facts to which appellant contends a medical expert would have testified were fully developed and presented to the jury without the necessity of presenting the testimony of a medical expert. The victim testified that appellant vaginally and orally raped her before ejaculating on her face and that appellant made her wipe his seminal fluid off her face with a towel that he provided. Further, the jury was apprised of the fact that appellant’s DNA was not found on the victim through the testimony of the detective and the physician who supervised the rape-kit administration, both of whom testified that the analysis of the rape kit revealed no DNA matching that of appellant. In her opening statements, the prosecutor also made the jury aware of the absence of appellant’s DNA on the victim.
As appellant failed to offer any evidence that his counsel was ineffective for failing to consult with and call as a witness a medical expert regarding the lack of DNA evidence on the victim and failed to establish that a reasonable probability existed that the outcome of the trial would have been dififerent had his counsel pursued the issue, he did not meet the standard under Strickland, for a showing of ineffective assistance of counsel.
Moreover, the decision of whether to call particular witnesses is a matter of trial | fistrategy that is outside the purview of Rule 37. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel’s decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Id. Where the prosecutor did not refute and, in fact, admitted that evidence of appellant’s DNA was not found on the victim, we cannot say that it was not a well-reasoned, tactical decision of defense counsel to not consult with and present testimony of a separate medical expert; nor can we say that appellant’s defense was prejudiced as a result of his defense counsel’s failure to do so. Accordingly, the circuit court properly denied relief on this claim without a hearing. See Scott v. State, 303 Ark. 197, 795 S.W.2d 353 (1990); Rheuark v. State, 299 Ark. 243, 771 S.W.2d 777 (1989).
II. Failure to Investigate
Appellant next argues that the circuit court erred in denying his claim that defense counsel was ineffective in failing to investigate and present to the jury the lack of physical evidence in his case. Specifically, appellant asserts that the prosecution relied solely on the victim’s testimony and that had defense counsel conducted a proper investigation, he could have presented to the jury a “reasonable explanation” for the lack of physical evidence.
In Flores, we explained the duty of trial counsel to investigate:
[T]rial counsel had a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, |r,a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, supra. However, “when the appellant shows that defense counsel failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances, that presumption must fail.” Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994).
350 Ark. 198, 212-13, 85 S.W.3d 896, 905.
In his petition for postconviction relief, appellant contended that if the rape had occurred as the victim alleged, “[a]m-ple physical evidence would have been found” and that the outcome of the trial would have been different if defense counsel had properly investigated and presented the lack of physical evidence to the jury. However, as previously discussed, the jury was apprised of the evidence in the case, or lack thereof, as it pertained to DNA evidence. Further, appellant fails to delineate the actual prejudice that arose as a result of the alleged ineffectiveness. As the jury was made aware that appellant’s DNA was not found on the victim; that Derrick Baker, who was present in appellant’s residence at the time of the rape, did not witness appellant having sex with the victim; and that Baker did witness appellant and the victim going into a separate room, but did not hear a commotion or any noises that would otherwise indicate that a rape was taking place, we cannot say that any additional investigation or presentation to the jury regarding the lack of evidence would have changed the trial outcome. Thus, appellant did not meet the standard under Strickland for a showing of ineffective assistance of counsel on this claim. Accordingly, the circuit court properly denied relief on this claim without a hearing.
III. Failure to Present to the Jury a Timeline of Events
Appellant next argues that the circuit court erred in denying his claim that defense 17counseI was ineffective in failing to develop and present to the jury a time-line of the incident. Specifically, appellant contends that establishing a timeline would have allowed the jury to take notice of the inconsistencies in the victim’s testimony; however, appellant does not specify which inconsistencies in the victim’s testimony would have been revealed had a timeline of events been presented to the jury. Nor does appellant affirmatively prove that his defense was prejudiced by counsel’s failure to present to the jury a timeline of the incident.
Unless appellant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere possibility that an evidentiary hearing might produce evidence to bolster an allegation contained in a petition for postconviction relief. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989); see also Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999).
Furthermore, we have repeatedly held that matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffectiveness of counsel. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Even if another attorney may have chosen a different course, trial strategy is a matter of professional judgment even if it proves unsuccessful. Id. Accordingly, the circuit court properly denied relief on this claim without a hearing.
IV. Failure to Call Appellant as a Witness on His Own Behalf
As his final point, appellant argues that the circuit court erred in denying his claim that ^defense counsel was ineffective in failing to call him as a witness on his own behalf. Specifically, appellant asserts that defense counsel advised him, through coer cion and duress, to not testify; however, appellant offers no facts to substantiate that claim. Appellant further argues that had he testified on his own behalf, he would have proclaimed his innocence and testified as to his education level, childhood, and ability to form healthy relationships. Not testifying, appellant alleges, was highly prejudicial to his defense in that it left the jury with only the victim’s testimony.
We cannot say that the circuit court erred in denying relief on this claim. “The accused has the right to choose whether to testify on his own behalf. Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy.” Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000); Wainwright v. State, 307 Ark. 569, 580, 823 S.W.2d 449, 454-55 (1992) (“[Tjhe decision to advise a defendant not to take the stand, even if it proves improvident, is a tactical decision within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for post-conviction relief.”); Scott v. State, 303 Ark. 197, 201, 795 S.W.2d 353, 355 (1990) (“We might agree with Scott’s argument that he had a right to testify in his own defense, but he has shown nothing to indicate the decision was other than a tactical one.”); Isom v. State, 284 Ark. 426, 430, 682 S.W.2d 755, 758 (1985) (“[T]he decision to advise a client not to take the stand is a tactical one within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for postconviction relief. Neither mere error on the part of counsel nor bad advice is tantamount to a denial of a fair trial.”); McDaniel v. State, 282 Ark. 170, 174, 666 S.W.2d 400, 403 (1984) (“Even if petitioner would have been better off not taking the stand, mere mistakes on counsel’s part do not establish the denial of a fair trial.”).
In his petition for postconviction relief, appellant stated that defense counsel advised him that if he testified on his own behalf, he would be open to questioning on his prior felony convictions. Thus, it appears that defense counsel made a professional judgment that it would be improvident for appellant to testify given his criminal history. While another attorney may have assessed the situation differently, the decision to advise a client to testify on his own behalf is a tactical one within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for postconviction relief. Isom, 284 Ark. 426, 682 S.W.2d 755. Furthermore, the circuit court found, after reviewing the trial record, that appellant was personally addressed by the circuit court at the close of the defense’s case and questioned as to whether it was his decision to not testify on his own behalf, to which appellant replied in the affirmative. Accordingly, the circuit court properly denied relief on this claim without a hearing.
The circuit court’s denial of postconviction relief is affirmed.
Affirmed.
. Appellant subsequently filed a "Motion Requesting Leave to File an Amended or Supplemental Rule 37.1 Petition," which the circuit court denied on the grounds that appellant’s motion failed to identify any grounds that he was unaware of at the time he filed his original Rule 37.1 petition. | [
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DAVID M. GLOVER, Judge.
| Leonard Austin appeals from the termination of his parental rights to his daughter, S.A. (D.O.B.12-4-07), challenging the sufficiency of the evidence supporting the trial court’s best-interest and statutory-grounds findings. We affirm.
The Arkansas Department of Human Services (DHS) received an anonymous report that three-year-old S.A. was living, unsupervised, with Shawnda Harlen and Leonard Austin, her parents, while the parents used methamphetamine every day. A DHS family-service worker located S.A. living in a hotel room with Shawnda and learned from Shawnda that Leonard had been arrested for possession of methamphetamine the previous Saturday. Shawn-da’s drug screen tested positive for methamphetamine, benzodiazepine, and THC. DHS exercised an emergency seventy-two-hour hold on S.A. on December 3, |⅞2010, and obtained emergency custody of S.A. on December 6, 2010, who was subsequently determined to exhibit failure-to-thrive issues, developmental delays, and hygiene needs.
On January 4, 2011, approximately one month after S.A. was taken into emergency custody, the trial court found S.A. to be dependent-neglected, ordered S.A. to remain in DHS custody, ordered Leonard to undergo paternity testing, and made reunification the goal of the case plan. S.A. remained in DHS custody through a period of reviews, and the trial court subsequently changed the case goal from reunification to adoption.
On February 24, 2012, DHS filed a petition to terminate Leonard’s and Shawnda’s parental rights. Following the May 21, 2012 hearing on the petition, the trial court granted termination of Shawnda’s parental rights but denied the petition with respect to Leonard, reasoning that he had not had adequate time to complete the offered services and to correct the conditions. As to Leonard, the trial court revised the goal to permanent custody with adoption as concurrent case goals.
On October 3, 2012, DHS again filed a petition to terminate Leonard’s parental rights. At the November 5, 2012 termination hearing on the second petition, Leonard acknowledged that the reason S.A. had been adjudicated dependent-neglected was because of his and Shawnda’s drug use. He also acknowledged that he had been ordered to maintain stable housing and that he had lived in a trailer with environmental issues, | including nasty carpet, cockroaches, and cabinets that were falling down. He further confirmed there had been issues about family members coming over and drinking and smoking, with beer cans and wine-cooler bottles lying around. Also regarding housing, he testified that since May, he had been living in a five-bedroom house, along with his sister, brother-in-law, and mother; that the brother-in-law had been to prison three or four times in Arizona for drugs and drug-trafficking charges; that his sister “might have a history in Arizona for traffic”; and that he had “plans to move out on [his] own at some point.” Leonard stated that he had still not completed the information packets that were necessary for DHS to obtain background checks on all of the persons living in his house. Confirming that he had been ordered to obtain employment, he stated his employment had “been on and off.” He acknowledged that he did not have a valid driver’s license; that his license had been suspended for at least ten years; that it had been suspended for various reasons, including a DUI in Dardanelle, Arkansas, and an outstanding felony warrant and fines in Arizona (which he acknowledged were a problem at a previous termination hearing and yet he had still done nothing about them); and that he got around by his friends and his mom or he walked.
Leonard testified that he had been to two different rehabs; while he did not complete the program at Hope Center, he did complete the program at Freedom House in September. He admitted that following the termination hearing in May, at which time |4the trial court denied DHS’s petition to terminate, he was tested for drugs and tested positive for THC even though he denied using drugs.
Melissa Cain, S.A.’s case worker, testified that Leonard had submitted to ordered random drug screens “off and on”; that his housing situation had been a serious concern throughout the case; that when he lived in the trailer, there were dog feces on the floor, dog urine in the carpet, and alcohol lying about in the home. She said that Leonard blamed his sister for the state of the trailer and the alcohol and reported that he had kicked his sister out because she smoked marijuana in the trailer — yet that sister was living with him in his current residence. Cain reported that Leonard had not informed DHS of his move from the trailer to the house and that she had not been able to inspect those living conditions because he was not home when she went there. She expressed concerns about his current living arrangements because there had been no background checks on the other persons living there, despite Leonard being ordered by the court to either vacate those premises or provide the necessary packet of information for background checks. Cain explained that she had personally delivered the packet to Leonard and had explained in detail what needed to be done. She stated that when he returned the packet, it was not correctly completed; that when she asked him if he wanted new ones to fill out correctly, he said that he did not — that he was only doing it because his attorney told him to. She explained that the background checks were necessary because DHS needed to make sure that S.A. would not be in jeopardy by being placed there.
| sCain described Leonard’s employment history and stated that he always sought work through temporary agencies, never staying long enough to get hired full time. She said that his employment was not stable and had not been for the two years she had been on the case.
She expressed concern that Leonard’s housing situation was not stable; that his employment was not stable; that he had outstanding warrants in Arizona that he had taken no steps to cure; that he did not have reliable transportation; that S.A. came to the department with failure-to-thrive issues that were ongoing; and that S.A. would need to keep appointments addressing those issues. Cain also expressed concern about Leonard’s anger management, even though he had completed an anger-management course. According to her, when she tried to discuss his anger issues, he responded “by getting madder” and that he had stormed out of the building the past week, using the “F” word with children present. She stated that drug relapse was a concern — even though Leonard had essentially remained “clean” for a long time during this case, he had been a drug addict for a long time and always denied using, even when confronted with the positive drug test as recently as May.
Cain testified that DHS was seeking termination of Leonard’s parental rights. She stated that S.A. had been in DHS custody for two years and that Leonard had not yet taken care of even the basic things, including housing, transportation, employment, background checks for others with whom S.A. would be sharing a residence, and | r,outstanding Arizona warrants. She stated that S.A. had been in the care of others longer than in her parents’ care and that S.A. was beginning to realize it; that S.A. would very likely be adopted; and that S.A. needs permanency and stability in her life.
Following the November 5 termination hearing, the trial court granted the petition to terminate Leonard’s parental rights to S.A. by order entered on December 3, 2012. In terminating Leonard’s parental rights, the trial court found that it was in S.A.’s best interest to do so, explaining that there was a high likelihood S.A. would be adopted and that there was the potential for harm to S.A.’s health and safety if she was returned to Leonard’s custody. The trial court also found that two statutory grounds for termination had been established: 1) that S.A. had been adjudicated dependent-neglected and had continued to be out of Leonard’s custody for twelve (12) months, and despite a meaningful effort by the department to rehabilitate Leonard, the parent, and correct the conditions that caused removal, those conditions had not been remedied by Leonard, Ark.Code Ann. § 9-27-341(b)(3)(i)(a), and 2) that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that return of S.A. to Leonard’s custody was contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, Leonard had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevented return of the juvenile to the custody of the parent, Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
|7A heavy burden is placed upon the party seeking to terminate parental rights. McDaniel v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 263, 2013 WL 1776479. It is an extreme remedy in derogation of the natural rights of the parent, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child and must give way to the best interest of the child when the natural parent seriously fails to provide reasonable care for their minor children. Id. In accordance with Arkansas Code Annotated section 9-27-341(b)(3), an order terminating parental rights must be based upon clear and convincing evidence, ie., proof that will produce in the fact-finder a firm conviction as to the verity of the allegation sought to be established. Id. On appeal, the issue before us is whether the trial court’s finding that the fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a trial court’s finding is clearly erroneous, we give great deference to its superior opportunity to observe the parties and to judge the credibility of witnesses. Id.
Best-Interest Finding
A best-interest finding involves two factors, adoptability and potential harm. Leonard does not challenge the adoptability finding. Rather, he contends that DHS did not demonstrate that returning S.A. to his care would be potentially harmful to the child. The trial court explained its decision that there would be potential harm to S.A. by noting |8that Leonard lived with his sister and her husband, who have had “drug and prison issues”; that Leonard had not had stable housing and had stated that he planned to move again in five or six months; that DHS had requested information in an effort to conduct a home study on the current residence, and that Leonard had not turned in the information packet for the background checks that are required in a home study; that Leonard had outstanding felony warrants in Arizona that he had known about since February 2011, but he had not taken any action to deal with that situation; that he had not maintained employment for more than three months and had no economic stability; that following the May 2012 termination hearing, he had tested positive for marijuana, which was confirmed by two separate subsequent tests; and that he did not have a valid driver’s license and had to rely upon others for transportation. We are not left with a definite and firm conviction that the trial court was mistaken in concluding that the potential for harm existed if S.A. were returned to Leonard.
Statutory Grounds
The two grounds relied upon by the trial court in terminating Leonard’s parental rights were: 1) S.A. had remained out of Leonard’s care and custody for more than twelve months, and despite meaningful efforts to rehabilitate and correct the conditions that caused removal, those conditions had not been remedied; and 2) other factors had arisen after the case began, demonstrating that return of S.A. to Leonard would be contrary to the child’s health, safety, or welfare.
[With respect to the failure-to-remedy ground, the trial court explained that S.A. had been adjudicated dependent-neglected on January 3, 2011, due to her parents’ drug use; that Leonard still did not have stable housing or employment; and that he continued to have drug issues. We find no clear error in the trial court’s finding that this statutory ground for termination had been established. With respect to the subsequent-factors ground, the trial court explained that, in addition to not having stable housing or employment, Leonard had demonstrated anger issues, did not have a driver’s license, did not manage his anti-depression medications well, had not completed his GED, had not completed the information packets necessary for DHS to complete its home study, had a drug relapse, and continued to have outstanding warrants in Arizona. As noted by the trial court, Leonard was not able to care for S.A. despite all the services that had been provided. We find no clear error in the trial court’s finding that this statutory ground for termination had also been established.
Affirmed.
GLADWIN, C.J., and VAUGHT, J., agree.
. Shawnda initially appealed the termination of her parental rights but subsequently dismissed her appeal. | [
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PHILLIP T. WHITEAKER, Judge.
| Appellant Eric Castrellon was charged with one count of second-degree sexual assault over allegations that he engaged in sexual contact with a twelve-year-old girl. Prior to trial, Castrellon filed a motion for supplemental discovery, asserting that he believed the accuser had undergone some form of mental health treatment or counseling and that the records of her treatment had not been provided to him. Following a hearing and briefs on the issue, the circuit court denied the motion. The court did, however, conduct an in camera review of the records, and it informed the parties at a hearing that it did not find anything in the records that would be considered exculpatory or Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The matter proceeded to trial, and a jury found Castrellon guilty of second-degree Insexual assault. The jury recommended sentencing Castrellon to five years’ probation, and the circuit court accepted the jury’s recommendation. On appeal, he argues that the circuit court erred in denying his motion for directed verdict and in denying him access to the accuser’s medical, psychological, and counseling records. We find no error and affirm.
In his first point on appeal, Cas-trellon challenges the circuit court’s denial of his directed-verdict motion. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429; Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Paschal, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
A person commits the offense of second-degree sexual assault if he, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age and not the person’s spouse. Ark.Code Ann. § 5-14-125(a)(3) (Supp.2011). “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.” Ark.Code Ann. § 5-14-101(10) (Supp.2011). On appeal, Castrellon does not deny that he was over the age of eighteen or that his victim was under the age of fourteen. Rather, he contends that the evidence was lacking that he engaged in “sexual contact” because there |3was no proof that his actions were for the purpose of sexual gratification.
The victim in this case, twelve-year-old H.C., testified at trial that Cas-trellon was an old family friend of her father’s, as well as her pastor. On the night of the events in question, H.C. spent the night with Castrellon’s children, A.C. and J.C., who were her friends. The girls all went to sleep in A.C.’s bunk bed. At some point during the night, H.C. stated that she woke up, opened her eyes, and saw Castrellon. She felt him “rubbing on [her] vaginal region” over her clothes. H.C. said she did not know how long the rubbing had been going on before she opened her eyes, but it stopped after she woke up.
Castrellon’s wife testified that, on the night in question, she asked Castrellon to go into the girls’ bedroom and check to see if their five-year-old daughter had wet the bed. She said that she did not tell Cas-trellon that they had company that night. Castrellon also testified that he had no idea that H.C. was in the house that night. He subsequently stated, however, that he came home late that night and recognized that his wife was tired because she had “the four kids, plus H.C.” that day.
Castrellon testified that he went in the bedroom to check whether the five-year-old had wet the bed. He said that he “just felt around to see if [he] could feel wetness,” but then he saw a “bigger leg” and realized that H.C. was in his daughter’s bed. He thought H.C. was asleep, so he left the room and did not say anything to anyone because it would have been “awkward.” Castrellon denied knowing who he was touching at the time. He noted that he had been around H.C. many times after that, and her behavior did not lead him to think that |4she was afraid of him or that he had done anything to her.
On appeal, Castrellon concedes that the touching happened, but he contends that it was accidental and not done for the purpose of sexual gratification. Castrellon argues that “most of the cases” discussing whether an act was for the purpose of sexual gratification involve either penetration or “some other obviously non-accidental activity.” Our supreme court, however, has repeatedly held that, in cases of sexual abuse, the jury can assume that the defendant had sexual contact with the victim for the purpose of sexual gratification, and it is not necessary for the State to directly prove that he was so motivated. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66; Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152; Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992) (affirming sexual-abuse conviction where defendant grabbed the victim between the legs and there was no evidence of penetration).
Castrellon describes the circumstances of the touching as “ambiguous” and asserts that his actions should not have been interpreted as being for sexual gratification. H.C. unambiguously testified, however, that Castrellon was “rubbing on [her] vagina.” A sexual-assault victim’s testimony may constitute substantial evidence to sustain a conviction for sexual assault. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The victim’s testimony 15need not be corroborated, and the victim’s testimony alone, describing the sexual contact, is enough for a conviction. Colburn v. State, 2010 Ark. App. 587, 2010 WL 3582441. The credibility of witnesses is a matter for the jury’s consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Even where the defendant denies the allegations, the credibility and weight of the evidence are issues properly left to the fact-finder. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395. The jury in this case chose to believe H.C. Her testimony, standing alone, constituted substantial evidence to sustain Castrellon’s conviction.
In his second point on appeal, Castrellon argues that the circuit court should have allowed him access to H.C.’s counseling records, contending that the court erred in finding that the materials were privileged. The standard of review for the circuit court’s decisions in such matters is whether the court abused its discretion. See Johnson v. State, 342 Ark. 186, 207, 27 S.W.3d 405, 418 (2000) (Brown, J., dissenting) (“Certainly the extent of any waiver of a privilege must be reviewed by this court on a case-by-case basis for an abuse of discretion.”) (citing Schaefer v. State, 695 So.2d 656 (Ala.Crim.App.1996)).
Castrellon sought access to H.C.’s medical, psychological, and counseling records on the basis that they might contain statements by H.C. that contradicted the allegations she had made against him. The circuit court initially denied Castrellon’s motion outright, but it later agreed that it would review the records in camera to determine whether there was any exculpatory evidence contained therein. After conducting that review, the court did not find any such information. The court stated that there was no renunciation of H.C.’s allegations in her records, but it also agreed that, if her trial testimony was inconsistent with her medical [ firecords, the court would “turn that over ... to the prosecutor and the defense for that limited section of it.” The court ultimately concluded, however, that there was “nothing based on my information to this point that there’s anything that I find exculpatory to the defense.”
On appeal, Castrellon first urges that, under Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), he was entitled to an in camera review of the allegedly privileged information to determine whether the ma terials contained any exculpatory evidence. The circuit court here conducted the in camera review afforded by Ritchie. Castrellon appears to contend that he was entitled to review the allegedly privileged information himself. His argument, however, misapprehends the holding of Rit-chie. In Ritchie, the Supreme Court held that a “defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [State’s] files.” 480 U.S. at 59, 107 S.Ct. 989. Rather, a defendant’s “interest (as well as that of the [State]) in ensuring a fair trial can be protected fully by requiring that the [privileged] files be submitted only to the trial court for an in camera review.” Id. at 60, 107 S.Ct. 989. Cas-trellon received the relief afforded by Rit-chie, and we therefore find no error.
Castrellon also argues that the circuit court erred in finding that H.C.’s medical records were privileged. Arkansas Rule of Evidence 503(b) (2012) provides as follows:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
|7Rule 503(d)(3)(A), however, sets out an exception to Rule 503(b), stating that there is “no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense.” Castrellon appears to assert that he was entitled to access to H.C.’s records under this exception.
Castrellon acknowledges that our supreme court has held that Rule 503(d)(3)(A) “clearly anticipates that the privilege is inapplicable only as to a party to a proceeding who brings his or her own physical, mental, or emotional condition into issue.” Johnson, 342 Ark. at 195, 27 S.W.3d at 411 (emphasis in original). Thus, where a witness is not a party to the proceedings and does nothing to bring her own emotional condition into issue, she may properly assert her patient-physician privilege. Id.
The supreme court extended this reasoning to hold that the victim of the crime being prosecuted is not a party to a criminal proceeding and does not have a claim in a criminal prosecution. State v. K.B., 2010 Ark. 228, at 8-9, 379 S.W.3d 471, 475-76. In support of that conclusion, the supreme court cited Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990), in which the court declined to hold that a rape victim was the “real party in interest,” and Clay v. State, 236 Ark. 398, 366 S.W.2d 299 (1963), in which the court observed that the State is the actual party in a criminal prosecution, not the victim. Thus, in K.B., the supreme court held that the exception to the patient-physician privilege in Rule 503(d)(3)(A) does not apply to the victim of the crime.
[8CastrelIon argues that both Johnson and K.B. are “flawed” opinions, but of course, this court cannot overturn a decision of the supreme court. See Watkins v. Ark. Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, 420 S.W.3d 477 (holding that this court must follow the precedent set by the supreme court and is powerless to overrule its decisions). In any event, we find no case law that calls either of these holdings into question. Be cause H.C. was a victim and a witness, the Rule 503(d)(3)(A) exception does not apply to her.
Finally, Castrellon contends that, by testifying about her depression after the incident, H.C. waived her privilege pursuant to Arkansas Rule of Evidence 510. Castrellon neither raised his Rule 510 waiver argument nor obtained a ruling on it before the circuit court; accordingly, this court will not consider it for the first time on appeal. Seals v. State, 2013 Ark. App. 326, 2013 WL 2112237; Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d 40.
Affirmed.
WALMSLEY and WOOD, JJ., agree.
. Castrellon raises a brief argument on appeal that this assumption unconstitutionally shifts the burden of proof to the defendant. This argument, however, was not made below, and we therefore do not consider it on appeal. Seals v. State, 2013 Ark. App. 326, 2013 WL 2112237.
. Castrellon also asserts that the jury viewed a video that showed him brushing hair out of H.C.’s eyes and complains that his actions were "given a retroactively sinister implication.” The video, however, was introduced without objection by Castrellon, so he cannot be heard to complain about it for the first time on appeal. Owens v. State, 2011 Ark. App. 763, 387 S.W.3d 250.
. Rule 510 provides that "[a] person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.” | [
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LARRY D. VAUGHT, Judge.
| ,This is a foreclosure case. On January 23, 2014, the Circuit Court of Benton County entered three orders: one denying the motion to set aside a foreclosure sale filed by appellants, Tammy and Homer Brown; a second setting a hearing on surplus funds; and a third confirming the foreclosure sale. On January 31, 2014, the trial court entered an amended order confirming the foreclosure sale. On February 6, 2014; the Browns filed a notice of appeal, arguing that the trial court abused its discretion in failing to set aside the foreclosure sale and that the trial court erred in failing to enforce an oral contract between the Browns’ counsel and counsel of separate appellee, United Bank. We dismiss for lack of jurisdiction.
On June 20, 2012, the Browns executed a promissory note in favor of United Bank in the amount of $44,809.62. That same day, the Browns executed a mortgage on their home and real property in favor of United Bank to secure the loan. When the Browns defaulted on the loan, United Bank filed a foreclosure complaint and an amended foreclosure complaint against 12the Browns (and others with purported interests in the property), alleging that the Browns were in default on the loan and owed United Bank $47,083.89 plus interest. United also alleged that the Browns owed it $26,327.18 in insurance proceeds resulting from a homeowner’s claim. The Browns answered the foreclosure complaint and filed a counterclaim against United Bank, alleging -predatory-mortgage servicing, breach of fiduciary duty, abuse of process, civil conspiracy, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act.
On October 1, 2013, the trial court entered an agreed decree of foreclosure and dismissal of the counterclaim following an August 5, 2013 hearing. In relevant part, the decree stated that United Bank was entitled to judgment against the Browns in the amount of $71,496.64 plus interest; that United Bank would refrain from conducting a Commissioner’s sale of the real property for sixty days; that the Browns had sixty days from the .date of the agreed decree to tender the total amount of the judgment and upon tender United Bank would convey the property to the Browns; that if the Browns failed to pay United Bank the judgment, then United Bank could conduct a public sale through the Commissioner; that United Bank’s right to foreclose was absolute on the sixtieth day after the agreed decree of foreclosure; and that the Browns’ counterclaim was dismissed with prejudice.
The Browns did not tender payment to United Bank within the sixty-day period. On November 18, 2013, United Bank filed a notice of a commissioner’s sale. The notice stated that the sale of the Browns’ property would be held at 10:00 a.m. on December 16, 2013. On November 25, 2013, United Bank published notice of the December 16, 2013 sale in the Northwest Arkansas Newspapers.
|sThe foreclosure sale was held December 16, 2013. Neither the Browns nor their counsel attended the sale. The Browns’ property was purchased by KSBD, LLC, and Shane Miller for $135,000. On December 26, 2013, the Browns filed a motion to set aside the foreclosure sale. After a hearing on the Browns’ motion, the trial court denied the Browns’ motion to set aside the foreclosure sale. Thereafter, on January 23, 2014, the trial court entered three separate orders (1) denying the Browns’ motion to set aside the sale and granting the purchasers’ motion to intervene; (2) setting a hearing on the surplus funds from the sale; and (3) confirming the foreclosure sale. The order confirming the sale listed KSBD, LLC, as the sole purchaser of the Browns’ property—but it did not include Shane Miller. On January 31, 2014, the trial court entered an amended order confirming the foreclosure sale. The amended order added Shane Miller, along with KSBD, LLC, as purchaser of the Browns’ property. The Browns filed a notice of appeal on February 6, 2014. The notice stated that “[t]he order appealed from is the order entered on the 23rd day of January, 2014.” We cannot reach the merits of the Browns’ appeal because they failed to appeal from the only final, appealable order entered in this case.
Rule 2(a)(1) of the Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the trial court. Robinson v. Lindsey, 2014 Ark. App. 287, at 1, 2014 WL 1856771. When the appealed order is not final, however, we will not decide the merits of the appeal. Id. Whether a final judgment, decree, or order exists is a jurisdictional issue that we have the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Id. For |,,a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. at 1-2, 2014 WL 1856771. The order must put the trial court’s directive into execution, ending the litigation or a separable branch of it. Id. at 2, 2014 WL 1856771. An order is not final when it adjudicates fewer than all of the claims or rights and liabilities of fewer than all the parties. Id.
Generally, a decree confirming a foreclosure sale is a separate, final, and appealable order, and a notice of appeal must be given within thirty days of that decree. Budget Tire & Supply Co. v. First Nat’l Bank of Fort Smith, 51 Ark. App. 188, 193, 912 S.W.2d 938, 941 (1995). Decrees confirming a foreclosure sale are final because they place the court’s directive into execution and no additional orders are required prior to a foreclosure sale. Id., 912 S.W.2d at 941. However, an order determining the parties’ rights and obligations in a foreclosure action but failing to provide for execution and indicating that further judicial action would be necessary before foreclosure and execution would be ordered is not a final, appealable order. Id., 912 S.W.2d at 940.
The Browns’ February 6, 2014 notice of appeal stated that “[t]he order appealed from is the order entered on the 23rd day of January, 2014.” As set forth above, there were three orders entered on January 23, 2014. While it is not clear from the face of the notice of appeal which order the Browns are appealing, only one of the three orders could be a final, appealable order—the order confirming the sale. Id., 912 S.W.2d at 941. However, this order is not the Ufinal, appealable order in this case because it did not dispose of the rights of Miller, one of the purchasers of the Browns’ property. In their brief, the Browns concede that Miller is a party interested in the outcome of this proceeding. He was represented at, and participated in, the hearing held January 10, 2014. Because the January 23 order confirming the foreclosure sale adjudicated fewer than all the claims or rights and liabilities of fewer than all the parties, it is not a final, appealable order. Robinson, 2014 Ark. App. 287, at 2, 2014 WL 1856771.
The only final, appealable order in this case was the January 31, 2014 amended order confirming the sale. This order included Miller, which had the effect of determining all of the parties’ rights and obligations in this foreclosure action and placing the court’s directive into execution so that no additional orders were required prior to a foreclosure sale. Budget Tire, 51 Ark.App. at 193, 912 S.W.2d at 941. However, the Browns’ February 6, 2014 notice of appeal did not designate the January 31, 2014 amended order confirming the foreclosure sale. And this amended order was filed of record at the time the Browns filed their notice.
Rule 3(e) of the Arkansas Rules of Appellate Procedure-Civil provides that a notice of appeal shall “designate the judgment, decree, order or part thereof appealed from ... [.] ” Ark. R.App. P.-Civ. 3(e)(ii) (2014). Orders not mentioned in a notice of appeal are not properly before the appellate court. Id.; Racine v. Nelson, 2011 Ark. 50, at 9, 378 S.W.3d 93, 99. Because the Browns’ notice of appeal did not state that they were appealing from the only final, appealable order—the January 31, 2014 amended order confirming the foreclosure sale—we hold that the Browns’ notice of appeal is fatally deficient, and we lack jurisdiction to hear this case.
| fiWe acknowledge that only substantial compliance with the procedural steps set forth in Rule 3(e) is required. Jewell v. Moser, 2012 Ark. 267, at 4, 2012 WL 2149758. A notice of appeal that fails to designate the judgment or order appealed from as required under Rule 3(e) is deficient, but such a defect is not necessarily fatal to the notice where it is clear what order the appellant is appealing and the notice was filed timely as to that order. Id. Substantial compliance has also been found in cases where there had been a scrivener’s error. Duncan v. Duncan, 2009 Ark. 565, at 5, 2009 WL 3786850 (holding that the appellant’s notice of appeal was not fatally flawed where the date of the order in the notice was incorrect because it was clear from her arguments on appeal what order she was appealing). Here, the Browns’ notice of appeal—filed February 6, 2014—appealed only from a January 23 order. It omitted the January 31, 2014 amended order entirely. There is no evidence of a scrivener’s error, and it is not clear from their arguments on appeal that they are appealing the January 31 amended order. This is not substantial compliance.
For these reasons, we dismiss the appeal.
Dismissed.
GLOVER and WOOD, JJ., agree.
. At the hearing, counsel for the purchasers of the Browns’ property, KSBD, LLC, and Shane Miller, moved to intervene; the motion was granted by the trial court.
. The January 23, 2014 order denying the motion to set aside the foreclosure sale is not a final, appealable order because it did not place the court's directive into execution and additional orders were required prior to a foreclosure sale, i.e., the order confirming the foreclosure sale. Budget Tire, 51 Ark.App. at 193, 912 S.W.2d at 941. | [
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KENNETH S. HIXSON, Judge.
|!After a jury trial in October 2013 in Pulaski County Circuit Court, appellant Andrew M. Holland was found guilty of committing first-degree sexual assault against one teenage boy (XB) and second-degree sexual assault against another teenage boy (JD). Appellant was sentenced to concurrent prison terms, forty and thirty years respectively, for an effective prison term of forty years. A judgment was filed in November 2013, from which appellant filed a timely notice of appeal.
| Appellant does not challenge the sufficiency of the evidence to support his convictions. Rather, appellant argues on appeal that the trial court abused its discretion with regard to three evidentiary rulings: (1) by permitting the State to introduce evidence of appellant’s alleged prior bad acts pursuant to the “pedophile exception” to Arkansas Rule of Evidence 404(b); (2) by excluding evidence of each victim’s prior sexual conduct pursuant to the rape-shield statute, Arkansas Code Annotated section 16^2-101; and (3) refusing appellant access to JD’s inpatient psychotherapeutic-treatment records, where the trial court deemed those records to be privileged pursuant to Arkansas Rule of Evidence 503. A trial court has broad discretion in making evidentiary rulings and will not be reversed absent an abuse of that discretion. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008). The State asserts that appellant has failed to demonstrate an abuse of discretion or any clear error. We affirm.
To place these tiial court rulings in context, we discuss the substance of the testimony given at trial by XB, XB’s mother, JD, and JD’s mother. XB testified that he was presently twenty years old, and he knew appellant, who he called “Andy,” because Andy was his mother’s friend and a neighbor of theirs when XB was a boy. XB stated that appellant would discipline him or babysit him when his mother was at work; he acknowledged that his mother was unable to handle him. XB said that when he was age thirteen to fifteen, Andy sexually abused him when he visited Andy’s house.
XB said that on one occasion Andy asked him to come to his bedroom and to sit with him, and after XB complied, Andy began rubbing his (XB’s) leg. XB said that Andy put a pornographic DVD on television and then told XB to get undressed and to get into bed with |ahim. XB described to the jury that he felt Andy move toward his body from behind in the bed, felt him grab his (XB’s) penis and masturbate him, and then felt Andy’s penis penetrate his buttocks. After a few minutes, Andy informed XB that he (XB) had a “big d-fc-Ark,” leaving XB in the bedroom with a bottle of lotion and instructions to “finish up.” On another occasion, XB said that he went to Andy’s house where Andy asked to watch XB masturbate, and he complied but would not make eye contact with Andy.
XB said that his mother requested Andy to discipline him for misbehavior, which Andy did by whipping him with a belt. XB added that Andy encouraged him to masturbate before school to see if it would help calm him down. XB was in and out of therapeutic homes and juvenile court during this time period. While in one therapeutic group home, he revealed the abuse to one of the house parents in charge there. XB was concerned that perhaps the sexual abuse was part of the reason he was misbehaving, but he regretted revealing the abuse when he realized that it would have to be reported to authorities. XB admitted that he lied when he told investigators that he was anally penetrated three times because it only happened once; he just wanted the investigator to leave him alone.
XB’s mother Danetta Thompson testified that XB’s father was not in his life and had instead been in prison for about twenty years. Thompson held a job and was a single mother of three children. Thompson stated that she had known appellant for a long time and had dated him briefly; they remained friends after an amicable breakup. She testified that appellant helped her out with things like cutting the grass and with disciplining XB. She described XB as a struggling student who was always in remedial classes; he took attention deficit |4medication for a while; he did not graduate high school until he was twenty years old. She said that as a young teenager, XB was noncompliant with basic chores and her house rules; he was engaging in high-risk behavior and lying to her. She said that XB got into more and more trouble as he grew older, so he was admitted intermittently to therapeutic homes and centers. While XB was in a therapeutic home, she was informed that he reported sexual abuse. Thompson said that her son was reclusive and did not like to communicate his feelings, so she was unaware of the abuse until the mandated reporter set things in motion.
JD also testified at trial; he was age eighteen. JD said that he was fifteen years old when he met Andy, seeking out Andy to manage him and help him become a successful rap artist. JD said that he first attempted to contact Andy by a Face-book message, to which Andy replied in the summer of 2010 and began to work with JD at his (Andy’s) home studio. JD described Andy’s house, with Andy’s bedroom in the back on one side. Andy’s house had another bedroom with a closet where the recording equipment was kept; a different aspiring rap artist lived in this bedroom. JD agreed that Andy taught him how to promote himself as a rap artist, and Andy even escorted him to New York in December 2010 so that JD could try out in a talent search for a television show. JD was at Andy’s house often, basically whenever he was not attending school. He explained that at first, Andy only touched him randomly or in passing with thigh rubs, hugs, and other groping behavior. JD said that over time Andy progressed to “extreme touching,” meaning JD’s bare skin and including his penis.
JD described one time when Andy told him to come sit on his bed, kissed JD’s cheek and neck, and then reached into JD’s underwear to feel his penis and told JD that he had “a |sbig d^Anfck.” JD said that he tolerated this behavior because he was so passionate about his rap music and wanted Andy’s professional help. JD also testified that he kept all this secret because it was embarrassing and emasculating to be taken advantage of by this man.
JD described another time when they were sitting on Andy’s couch and Andy pulled JD on top of him and touched JD’s genital area; Andy also had JD put his hand on Andy’s erect penis. He testified that Andy showed him pornography on a laptop computer. JD ended up in a behavioral health hospital, and when he was being processed for long-term care, he did not mean to but answered “yes” when asked if he had been sexually abused. He named Andy as the perpetrator. This started the investigation regarding JD and Andy. JD stated that it was not advantageous for him to tell about the abuse because it meant he had to stay in therapy for a longer period of time, and it ended his rap career.
JD’s mother Jocelyn Davis met Andy •some time around July 2010; she heard that appellant was a rap music producer who could help her son. She described Andy as a mentor to her son and a friend to her, helping her move, giving her money, and picking up her children from school when she needed it. Davis, having put Andy in a position of trust, expected Andy to act as a parental reinforcement and be the authority figure to her son, particularly because JD’s father was not in his life. She said that Andy came to her house after XB’s allegations came to light, telling Davis that XB was lying about this to get himself out of trouble. Davis testified that JD became progressively more defiant of her, and he had not yet revealed that Andy abused him too. On a night in October 2011, she said that she and her son had a physical confrontation about his defiant behavior, so she called the police on her 16son. The choice at that point was to send JD to juvenile court or to a treatment center; they chose treatment. It was only after her son was in a treatment facility for a few weeks that she was informed by her son’s therapist and an investigator that he reported sexual abuse by Andy. She reserved judgment on the truth of the allegations until after she saw and spoke with JD; she believed that he was telling the truth.
Pedophile Exception to Arkansas Rule of Evidence 101(b)
Appellant argued to the trial court, and now argues on appeal, that the trial court erred by permitting the State to enter into evidence the details of two 1989 convictions for committing sexually abusive acts on two teenage boys in California; the testimony of one of those boys (now an adult) explaining the factual basis of those convictions; and the testimony of three other boys (now adults) about appellant having sexually abused them when those boys were thirteen to fourteen years old. Appellant asserts that this information was not sufficiently similar or temporally close enough in time to the charges for which he was standing trial. He argues that his due-process rights were violated because the allegations were patently unreliable and unfairly prejudicial because of how long ago the alleged abuse occurred. Thus, appellant argued, the “pedophile exception” should not apply to permit admission of all this highly and unfairly prejudicial evidence.
The State asserts, as it did during trial, that this evidence was permissible by virtue of Arkansas Rule of Evidence 404(b) and Arkansas’s “pedophile exception.” Rule 404(b) provides:
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. It may, however, be |7admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The list in Rule 404(b) of permissible purposes for which “bad acts” evidence may be admissible is exemplary and not exhaustive. Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). These exceptions inure because such evidence is independently relevant and does not merely establish that the defendant is a bad person who does bad things. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264. Our supreme court has recognized a separate “pedophile exception” to the general rule that evidence of a defendant’s prior bad acts cannot be used to prove that the defendant committed the charged crime. Id. The pedophile exception allows the State to introduce evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Id. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id. For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct. Id. We also require that there be an “intimate relationship” between the defendant and the victim of the prior act, meaning a relationship close in friendship or acquaintance, familiar, near, or confidential. Id. For temporal proximity, we apply a reasonableness standard to determine whether a prior bad act remains relevant despite the passage of time. Id. The standard of review is abuse of discretion, meaning that the appellant must make a showing that the trial judge acted improvidently, thoughtlessly, or without due consideration. Id. See also Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008); Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). Viewing the present appeal under this standard, we affirm the trial court’s evidentiary ruling.
We will address each component of evidence as presented in appellant’s brief. First, appellant argues that MJ was wrongly permitted to testify as to alleged sexual abuse by appellant against him in Arkansas in 1999, when MJ was age fourteen. MJ was age twenty-eight at the time of trial. He testified that he knew appellant, who he called “Mr. Andy,” as a neighbor who befriended him and paid him to do yard work. This interaction led to appellant asking MJ inside his home, where he eventually showed MJ pornographic movies, leading to MJ having an erection. At that point, MJ complied with appellant’s desire to see MJ’s penis, appellant performed oral sex on MJ, and he told MJ that he had a large penis. After that, MJ said that appellant took him to a bedroom, where he had MJ get on top of appellant and .“hump him, hunch” him from behind and then switch positions so that appellant was on top of MJ. Afterward, he said that they redressed and then appellant gave him money and told him not to tell anyone what happened. MJ stated that he told his uncle and the police what happened. MJ admitted that he lied by adding details of being physically forced and threatened to do these sexual acts and he lied by not reporting the oral sex, explaining that he feared he would be in more trouble if he told the whole truth.
Appellant argues that MJ’s testimony was “patently unreliable,” too remote in time, and unfairly prejudicial where there was other pédophile-exception evidence before the jury. We disagree. The temporal span of years is reasonable. This allegedly happened in 1999; appellant was accused of sexually abusing XB between 2006-2008 (approximately seven plus |9years later) and JD between 2010-2011 (approximately eleven to twelve years later). The sexual abuse and the adult-male-mentor relationship was very similar to the sexual abuse and mentor relationship described by XB and JD. Whether MJ was credible or reliable was for the jury to decide. We hold that the trial court did not abuse its discretion in permitting MJ to testify under the pedophile exception.
Appellant argues that the testimony of JG and JP, as well as the California convictions, should have been excluded due to temporal remoteness (dating back to 1988-1989) and due to dissimilarity with the charged acts. Appellant-contends that at the very least, the trial court should have limited this evidence to alleviate the overwhelming prejudice to appellant. He argues that the trial court’s ruling to admit so much pedophile-exception evidence equated to a violation of his rights to due process. We disagree that the trial court abused its discretion.
This evidence showed appellant’s proclivity for sexual acts with young teenage, typically African-American, males who were financially disadvantaged and from fatherless homes. This evidence almost uniformly showed that appellant gained the trust of each victim’s female parent, provided monetary and disciplinary assistance to the parent and victim when the victim was approximately thirteen years old, and would then escalate his contact with the victim by isolating and then sexu ally abusing the victim. The sexual abuse perpetrated on each boy was consistent as well—ranging from sexually charged comments about the victim’s penis size to inappropriate touching and then to masturbating as well as having oral or anal sex with the victim. This is precisely the kind of evidence contemplated |inby our state’s “pedophile exception,” and none of it was so far removed in time or so dissimilar from the charged acts to render it inadmissible. See Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008); Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008); Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005); Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005); Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998); Morrison v. State, 2011 Ark. App. 290, 2011 WL 1495994. We affirm the trial court’s exercise of discretion in admitting this evidence because neither an abuse of that discretion nor a due-process violation has been shown.
Rape-Shield Evidence
Appellant next contends that he was not allowed to present an adequate defense, depriving him of constitutional rights, because the trial court denied him the ability to demonstrate that the victims had motivation to fabricate these sexual-abuse allegations. Specifically, appellant asserts (1) that XB was diagnosed with a penile abscess within a week or two of making his “false accusation” against appellant, and his reports of sexual abuse were motivated by XB’s desire to deflect attention from his own sexual activity and associated embarrassment; and (2) that JD’s allegation of sexual abuse by appellant was motivated by JD’s desire to disprove any allegation that he was homosexual. The State counters that what appellant sought was specifically disallowed by the Arkansas rape-shield statute, Arkansas Code Annotated section 16-42-101 (Repl.1999), particularly subsection (b), which disallows evidence of a victim’s sexual history for the purpose of attacking the credibility of the victim, establishing a defense, or for any other purpose. We agree with the State.
_[nThe rape-shield statute’s overall purpose is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54; Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008). The trial court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004). Even if relevant, this evidence is not admissible if the probative value is outweighed by its inflammatory or prejudicial nature. Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004).
After a hearing on this request by the defense, the trial court ruled that there would be no discussion of the victims’ sexual history. This was proper. The rape-shield statute prevents this type of evidence, even where the defense complains that the victim’s sexual history bears on the motivation to fabricate and bears on credibility, allegedly impeding appellant’s constitutional right to present a defense. Hathcock v. State, supra; Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004); Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Hill v. State, 74 Ark. App. 28, 45 S.W.3d 406 (2001). We affirm on this evidentiary ruling as well.
Psychotherapist/Patient Privilege
Lastly, appellant argues that the trial court abused its discretion in refusing to require the State to produce JD’s treatment records from Rivendell, a behavior health service center [12where he was admitted for treatment. Appellant concedes that the trial court conducted an in camera review of the records in order to determine whether there was any exculpatory evidence to disclose to the defense and reported that there was none. Even so, appellant argues that he had the constitutional right to review those records and use any inconsistencies to attack JD’s credibility, overriding any patient/therapist privilege. We disagree that the trial court erred.
A witness, particularly a sexual abuse or rape victim, does not waive his Arkansas Rule of Evidence 503 patient privilege by testifying in a criminal proceeding; the party is the State, not the victim. See State v. K.B., 2010 Ark. 228, 379 S.W.3d 471; Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000); Castrellon v. State, 2013 Ark. App. 408, 428 S.W.3d 607. A defendant’s right to discover exculpatory evidence does not include the unsu pervised authority to search through the State’s files. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The defendant’s and State’s interests in ensuring a fair trial can be protected fully by requiring that the privileged files be submitted only to the trial court for an in camera review. Id. at 60, 107 S.Ct. 989. Here, just such an in camera review was conducted, more than once to be thorough, at defense counsel’s request. We note, though, that even if the trial court erred by not allowing appellant access to JD’s treatment records, our supreme court has held that the psychotherapist/patient privilege is more important than a defendant’s need for probative evidence; the privilege is not overridden by a defendant’s constitutional right to present a defense. Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). We affirm on appellant’s last point on appeal.
1 isln conclusion, we affirm appellant’s convictions for sexual abuse in the first and second degree.
WHITEAKER and BROWN, JJ., agree.
. XB was bom in July 1993. XB was alleged to have been sexually abused between February 2006 to February 2008, when he would have been thirteen to fifteen years old. Based on appellant's date of birth in March of 1964, appellant would have been in his early forties.
. JD was born in May 1995. JD was alleged to have been sexually abused between September 2010 and April 2011, when he would have been fifteen years old. Appellant would have been in his mid-forties. | [
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PHILLIP T. WHITEAKER, Judge.
| Appellants Edward and Quinn Collins appeal from a Saline County Circuit Court order setting aside an award of attorney’s fees and costs. Appellee City of Bryant (the City) cross-appeals the trial court’s denial of its request to have a judgment entered in its favor. We reverse on the Collinses’ direct appeal and affirm on the City’s cross-appeal.
I. Procedural History
The Collinses filed a complaint against the City and Richard Penn, Director of Public Works, seeking relief for the City’s alleged failure to comply with the terms and conditions of an agreement between the parties for the location of a storm-drainage easement on the Collinses’ property. They requested an injunction to require the City to complete work on the easement, damages for the loss of use of their property and breach of contract, and attorney’s fees and costs.
12A jury returned a verdict in favor of the Collinses and assessed damages in the amount of $70,000. The trial court subsequently entered a judgment for that amount, and the City timely appealed.
After an appeal of the judgment was filed, the Collinses requested an award of attorney’s fees and costs as the prevailing party. The trial court granted their request, awarding attorney’s fees in the amount of $27,700 and nontaxable costs of $1,606.38. A judgment for that amount was filed on March 29, 2011. The City did not file a notice of appeal from that award or amend its previous notice of appeal.
On November 16, 2011, this court reversed the jury’s verdict, which found the City liable to the Collinses. City of Bryant v. Collins, 2011 Ark. App. 718, 386 S.W.3d 699. In so doing, this court found that Penn did not have the authority to bind the City to a contract with the Col-linses and that the City had not ratified any unauthorized agreement with them. The court’s opinion did not order remand or dismissal; rather, it merely stated that the jury’s verdict was reversed. The Col-linses filed a petition for review, which was denied by the supreme court on May 31, 2012.
On July 11, 2012, the City filed a motion to set aside the judgment for attorney’s fees and costs on the basis that the Col-linses were no longer the prevailing party. On September 17, 2011, the City filed a motion for entry of a judgment in its favor.
On September 25, 2012, the trial court denied the City’s motion to enter a judgment in its favor but granted the City’s motion to set aside the March 29, 2011 order awarding attorney’s fees to the Col-linses. The Collinses appeal the portion of the order setting aside lathe award of attorney’s fees and costs, and the City cross-appeals the trial court’s denial of its request to have a judgment entered in its favor after the reversal.
II. Direct Appeal — Attorney’s Fees
The Collinses argue that Rule 60 of the Arkansas Rules of Civil Procedure prohibited the trial court from setting aside the award of attorney’s fees. Under Rule 60(a), a circuit court may vacate an order within ninety (90) days of its entry. Ark. R. Civ. P. 60(a) (2012). The trial court recognized that Rule 60 of the Arkansas Rules of Civil Procedure prohibits courts from modifying an order more than ninety days after its entry and further recognized that the order awarding attorney’s fees in this case was more than ninety days old. However, the trial court, citing the dissenting opinion in Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008), found that a mechanical application of Rule 60 under these facts would create an absurd result in which a nonprevailing party in a contract action would be awarded attorney’s fees and costs.
Where an order granting or denying attorney’s fees is entered after entry of the judgment, the issue of attorney’s fees is a collateral matter. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003). As such, the challenging party must file a notice of appeal from the fee order, and without such a notice, this court will not address any argument on the fee issue. Id. at 777, 121 S.W.3d at 164. The City could have filed a notice of appeal from the award of fees and costs, or it could have filed an amended notice of appeal incorporating that |4award. Under those circumstances, this court would have had jurisdiction to review the matter in the original appeal. However, the City never filed a notice of appeal from the attorney’s fee award, and this court never obtained jurisdiction to review it. We also note that the City could have requested that the trial court defer the determination of attorney’s fees until after the appeal on the merits had been decided. Again, the City did not do so.
The order awarding attorney’s fees and costs was entered on March 29, 2011. The circuit court lost jurisdiction to vacate the order under Rule 60(a) when it failed to do so within ninety days of the entry of the order. See Seidenstricker Farms, supra; Henson v. Wyatt, 373 Ark. 315, 283 S.W.3d 593 (2008); New Holland Credit Co. v. Hill, 362 Ark. 329, 208 S.W.3d 191 (2005).
III. Cross-Appeal — Entry of Judgment in Favor of the City
The City cross-appeals, arguing that, because this court’s opinion in Collins I only reversed the jury’s verdict, it was entitled to have a judgment entered in its favor. In support of its argument, the City cites Yu v. Metro. Fire Extinguisher Co., 94 Ark.App. 317, 230 S.W.3d 299 (2006) and Sanders v. Mincey, 317 Ark. 398, 879 S.W.2d 398 (1994). Those cases are distinguishable because the decisions in those cases specifically remanded with instructions that a judgment be entered. Additionally, unlike here, the decisions in those cases resulted in outcomes in favor of the plaintiff, who would need a corrected judgment upon which to execute. This court in Collins I, reversed the jury’s verdict and issued a mandate. That was all that was necessary to conclude the matter under those circumstances. The City also alludes to Rules 49 and 58, which do no more than state that the trial court shall enter a judgment |aon the verdict or decision of the court granting or denying relief. As such, they are not applicable.
Reversed on direct appeal; affirmed on cross-appeal.
GLADWIN, C.J., and WYNNE, HIXSON, and BROWN, JJ., agree.
HARRISON, J., dissents.
. A judgment may be set aside after ninety days 'pursuant to Rule 60(c) under certain limited circumstances not at issue here. | [
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JOSEPHINE LINKER HART, Justice.
11John Patrick Moody appeals from a decision of the Arkansas State Board of Law Examiners (the Board) denying him admission to the bar. On appeal, he argues that the Board erred in (1) finding that the record does not reflect that he has maintained a sufficient period of sobriety to establish the necessary mental and emotional stability to practice law; and (2) denying him admission outright, rather than deferring the question or admitting him conditionally pursuant to Rule XIII(D) of the Rules Governing Admission to the Bar. Our jurisdiction is based on Arkansas Supreme Court Rule l-2(a)(5) (2012) as it implicates our power to regulate the practice of law, and Rule XIII(F) of the Rules Governing Admission to the Bar. We affirm.
At a May 6, 2012 hearing before a panel of the Board, Moody testified that he was thirty-three years old and employed at his father’s law firm. He stated that he first took and passed the Arkansas bar exam in 2008, but failed to pass the Multistate Professional ^Responsibility Exam (MPRE) that year. After retaking and failing the bar exam in 2010, he took and passed the bar exam and the MPRE in 2011.
Moody discussed his involvement with alcohol, including an incident on August 6, 2005, when, while intoxicated after a night of partying, he struck and killed a bicyclist, Jason Pratt. Moody confirmed that he neither stopped to render aid to the victim nor turned himself in to the police. He claimed, however, that he was a “blackout drinker” and remembered “very little” of what happened that night.
Admitting that he was an alcoholic, Moody outlined the multiple programs he had attended over the years to combat his alcohol addiction. Asserting that he was in the Alcoholics Anonymous (AA) program, Moody claimed he was “currently” doing well, but acknowledged that he had previously “stumbled.” Moody declined to guarantee that he would not drink again and admitted that every day was a “struggle.” Nonetheless, he wanted to be an attorney because it was a “good way to help people.”
In response to questioning by the panel, Moody stated that in June 2010, he received inpatient alcohol treatment at a facility in Tennessee. Moody attributed his relapses to emotional setbacks and stress. Drinking, he said, was his way of coping with disappointing events. According to Moody, his longest period of sobriety was from May 2007 until October 2009. In testimony regarding the accident that killed Jason Pratt, Moody noted that he served ninety days in jail following his guilty plea and an additional twenty to twenty-one days after he violated his probation. Moody acknowledged that he was a law student at the time he killed Jason Pratt, but he received no disciplinary action from the law school. He |sdid note, however, that his ninety days of jail time caused him to miss a semester.
At the time of the hearing, Moody claimed that he had eight months of continuous sobriety. He opined that, this time, his pursuit of sobriety would be different because he was currently working with a sponsor through AA, something he had not done in the past. Moody asserted that he attended from one to three AA meetings a week.
Timothy R. Laughlin testified that he had been Moody’s AA sponsor for four months. Laughlin reported that he had been in daily contact with Moody, albeit mostly by telephone. He attributed Moody’s alcoholism to low self-esteem, a situation that he claimed Moody was working on.
Moody’s father, Edward O. Moody, and his father’s law partner, Lewis Ritchey, both testified that they supported Moody through his failed attempts to get sober. They both opined that Moody was currently doing well. They also stated that Moody appreciated the significance of his problem with alcohol. Ritchey acknowledged that Moody had “stumbled a few times” since he began working in the law office in 2009.
Jason Pratt’s mother, Sandra Jo Dale, testified that she had driven eleven hours from her home in Ohio to attend the hearing. According to Dale, neither Moody nor any member of his family personally expressed his remorse for having killed her son. She was surprised that Moody was allowed to finish law school. She stated that she and her son’s extended family continued to suffer emotionally as a result of Jason’s death. Dale introduced several letters from family members who opposed Moody’s admission to the bar. Dale admitted that she did not know if Moody had been to her son’s gravesite. Dale was erossjexamined4 about a wrongful-death settlement that Moody’s insurance had paid. She stated that her ex-husband had apparently received an insurance settlement, but she had not received any money.
Moody was recalled and claimed he was “extremely” remorseful for having killed Jason Pratt. He stated that, when it first occurred, he did not “reach out” to the victim’s family because he was “advised” not to. Subsequently, he wondered if they would want to hear from him. Moody claimed he resorted to alcohol to “escape” the misery of “realizing [he was] in a nightmare.” Upon questioning by the Board, Moody admitted that he had never been to Jason Pratt’s grave. He also admitted that one of the steps in the AA twelve-step program is to reach out to the victim and the people that the alcoholic has wronged, but claimed that there was a “caveat” that excused him because that step is obviated if it is going to “create more harm and damage.”
Included as an exhibit at the hearing was Moody’s criminal file. It contained the presentence report, which detailed the investigation that led to Moody’s arrest in the Jason Pratt homicide. It stated that at approximately 4:30 a.m. on August 6, 2005, a vehicle struck Jason Pratt as he rode his bicycle on West Markham Street in Little Rock. Less than an hour later, Mike Fitz-hugh was awakened by what sounded like the thump of a flat tire in the Bank of the Ozark parking lot just south of his bedroom patio window. Immediately, Fitz-hugh heard the “clinging sound” of beer bottles being tossed into a dumpster. He observed a white male unloading an ice chest from the rear seat of a Land Rover and placing it in the trunk of a dark-colored Ford Mustang. That same white male also took a pack of beer out of the Land Rover and placed it next to the ice chest. Fitzhugh subsequently noticed a second white male, whom he later identified as Moody, holding a flashlight, looking at the front passenger side |Bof the Land Rover. He later got into the Mustang with the first white male, who was driving. The two males left the Land Rover in the bank parking lot.
At 6:20 a.m., Jason Pratt’s body was discovered next to his bicycle. Located nearby were three pieces of broken amber glass. At approximately 7:00 a.m., Fitz-hugh walked out to the Land Rover and noticed damage to the front passenger side and a flat tire. The next day, Fitzhugh read about a hit-and-run accident that claimed the life of Jason Pratt. At approximately 1:30 that afternoon, he again walked out to the Land Rover and noticed the brush guard was still attached to the vehicle and that there was yellow paint on the shock. Later that day at about 5:30, Fitzhugh saw the brush guard lying on the ground next to the right front tire. He began to suspect that the Land Rover was involved in the fatal hit-and-run accident. Fitzhugh called his sister, who informed Little Rock police lieutenant Mike Davis.
On Monday, August 8, 2005, at approximately 2:50 a.m., Fitzhugh was awakened by the sound of something being thrown into the back of the Land Rover. He observed a silver SUV near the Land Rover. Subsequently, both vehicles exited the parking lot. Fitzhugh was unable to see the driver of the Land Rover, but he did get a look at the driver of the SUV, who was later identified as William Lawson Moody. Fitzhugh observed William Lawson Moody throw something into the woods behind a nearby Arby’s restaurant. Police were called but were told by William Lawson Moody that they were just fixing a flat Rtire. The police did not make a report. However, Fitzhugh again called the police, asking this time that they make contact with him. The police observed yellow paint on the coil spring but thought that the damage was “old.” One of the men told the officers that he had just spoken with police. Again, the police failed to make a report.
Later that morning, Officer Verkler received information regarding Fitzhugh’s suspicions about the Land Rover from Lieutenant Davis. Officer Verkler determined that the Land Rover belonged to Moody’s father, Ed Moody. Ed Moody stated that he had been out of the country on vacation and that Moody had been driving the vehicle. Ed Moody admitted that his son had called him about the location of a jack because he had a flat tire. Cellphone records showed that Ed Moody received a call from Moody at 4:21 a.m. and 9:22 a.m. on the day that Jason Pratt was killed.
On August 17, 2005, Officer Verkler obtained a search warrant for the Land Rover. The pieces of broken amber glass recovered at the crime scene matched a broken light on the Land Rover. Moody told police that the damage to the Land Rover was “old,” but did not give a specific date. The police developed Moody as a suspect, and prior to his arrest, legal counsel was hired. Ultimately, on October 6, 2006, Moody pleaded guilty to negligent homicide, a misdemeanor. The felony count of leaving the scene of an accident involving injury or death was nol-prossed. Moody received a year’s probation.
On April 21, 2007, Moody was arrested for DWI. Several months later, he pleaded guilty to violating the terms of his suspended sentence. According to the judgment and commitment order, Moody received a sentence of only ten days’ confinement.
|7A1so before the Board was Moody’s October 19, 2011 interview with the Board’s Executive Secretary, Chris Thomas. In the interview, Moody admitted that he began abusing alcohol at about age fourteen, when he was a freshman in high school. His first legal problems associated with his consumption of alcohol occurred in December 2008 when he was charged with public intoxication in Beaumont, Texas. The next incident was the fatal hit-and-run accident involving Jason Pratt. Moody claimed he could not remember much of what happened that evening, just “bits and pieces.” Moody stated that he was never interviewed by detectives and had no role in his plea negotiations. He noted that he was arrested for DWI just three months after his conviction. Again, he was not interviewed by police, and the trial court merely ordered alcohol treatment. Pursuant to his guilty plea, he attended his second inpatient alcohol treatment at a facility in Mississippi. Moody claimed that he continued treatment on an outpatient basis and voluntarily began attending AA meetings.
He had been asked by Thomas to provide proof of attendance. When asked about the paucity of the records, Moody explained that some of the sheets got “wet and damaged” when he kept them in his car. He further noted that when he applied for admission in February 2008, he had told Thomas that he intended to enlist in the lawyer-assistance program to ensure his recovery. He admitted that he did not follow through, but ascribed this failure to his expectation that he would not be eligible. Moody further testified that he had another month-long inpatient alcohol treatment in Tennessee in June 2010. He conceded that his involvement with AA had not ended his craving for alcohol. He admitted 18to alcohol consumption approximately a month and a half before the interview with Thomas. He also admitted that his attendance at AA meetings had been “sporadic,” that he did not have a sponsor, and that he did not request documentation.
The Board voted eight to two to deny Moody admission to the bar. In pertinent part, it found that Moody had relapsed several times since the hit-and-run accident that claimed the life of Jason Pratt. One of these relapses resulted in an arrest for drunk driving. The Board acknowledged that Moody was working with an AA sponsor but that he had only been doing so for four months. The Board further noted that after Moody killed Jason Pratt, he “actively engaged in efforts to mislead authorities and to cover up his crime.” Board concluded that “the record does not reflect that [Moody] has maintained a sufficient period of sobriety to successfully establish the present mental and emotional stability and good moral character by a preponderance of the evidence such that he should be granted a license to practice law in the State of Arkansas.” Moody timely filed a notice of appeal.
On appeal, Moody first argues that the Board erred in finding that the record does not reflect that he has maintained a sufficient period of sobriety to establish the necessary mental and emotional stability to practice law. He asserts that the record indicates that he “has taken full responsibility for his actions,” that he is “actively engaged” in an AA twelve-step program, that he talks with his sponsor on a daily basis, that he has bought a home, and that he is a valued employee in his father’s law office. He further argues that he accepted responsibility for his actions by pleading guilty to negligent homicide. In his reply brief, Moody’s appellate counsel also attempts to shift blame to the victim, Jason Pratt, by asserting |flthat “there never has been an attempt to question what Jason Pratt was doing riding a bicycle on a major thoroughfare, West Markham Street in Little Rock, at 4:30 in the morning” and “there has never been an inquiry as to whether Mr. Pratt may have been in violation of the law for riding his bicycle afer dark without lights or whether he contributed to his own death because he was not wearing any reflective clothing.” We find this argument unpersuasive.
An applicant for admission to the Arkansas Bar has the burden of proving eligibility by a preponderance of the evidence. Partin v. Bar of Ark., 320 Ark. 37, 41, 894 S.W.2d 906, 908 (1995). We review decisions of the Board denying admission to the bar de novo, and we will not reverse the Board’s findings of fact unless they are clearly erroneous. Shochet v. Arkansas Bd. of Law Exam’rs, 335 Ark. 176, 979 S.W.2d 888 (1998).
We believe that the record does not clearly demonstrate that Moody has put behind him more than two decades of alco hol abuse. It does, however, show that after the 2005 accident, Moody has attended at least three inpatient alcohol treatment programs, but after each treatment, he has relapsed, with his longest period of sobriety being less than two and one-half years. While he apparently is involved with AA, his work with a sponsor began only after his interview with the executive secretary and was only of limited duration at the time of his hearing. Further, Moody acknowledges that one of the triggers of his alcohol |inabuse was stressful situations. There was testimony suggesting that Moody may be a “valued” employee in his father’s law office, however, even his father’s law partner, Lewis Ritchey, conceded that Moody’s job performance had periodically been substandard.
We recognize that the accident that resulted in Jason Pratt’s death occurred more than seven years ago, but Moody’s use of alcohol continued, and according to his testimony, his last period of abstinence was only eight months before the hearing. Given the seriousness of the repercussions of Moody’s conduct while under the influence of intoxicants, his failed attempts at rehabilitation, and the short period of time that Moody has refrained from the use of alcohol at the time of the hearing, we cannot say that the Board’s findings were clearly erroneous. We affirm the Board on this point.
For his second point, Moody argues that the Board erred in denying his admission completely rather than deferring the question or admitting him conditionally pursuant to Rule XIII(D) of the Rules Governing Admission to the Bar. We decline to address this point.
Under Rule XIII(D), the Chair of the Board (the Chair) is vested with the authority to appoint a Deferral of Admission Committee, and, if the Chair concludes that an applicant by examination might be eligible for admission absent a current “condition or impairment resulting from alcohol or other chemical or substance abuse which currently adversely affects the applicant’s ability to practice law in a competent and professional manner,” the Chair may offer the applicant a chance to participate in the deferral-of-admission program. Under the plain wording of Rule XIII(D), the Chair has sole authority for determining whether | uan applicant is eligible.
As Moody himself notes, the possibility of deferred admission was not even an issue in this case until he raised it on appeal. There is nothing in the record to indicate that the Chair concluded that Moody was a candidate for the deferral program, nor is there any indication that Moody requested consideration. We decline to address arguments that were not developed below. Ligon v. Rees, 2010 Ark. 225, 364 S.W.3d 28.
Affirmed.
. There is absolutely no evidence in the record concerning how Jason Pratt was dressed at the time he was struck and killed by Moody. Moody claimed that he was suffering from an alcohol blackout at the time, and, as noted previously, Moody did not stand trial for his crime, so there was no trial testimony. | [
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CLIFF HOOFMAN, Judge.
1 Appellant Baptist Memorial Hospital-Forrest City (the hospital) sued appellee Dr. Paul Neblett for breach of contract, and the jury returned a verdict in its favor. The hospital now appeals from the trial court’s denial of its motions for prejudgment interest and attorney’s fees. We affirm the denial of prejudgment interest and reverse and remand on the issue of attorney’s fees.
Pursuant to a promissory note and a “Physician Agreement” with the hospital, Dr. Neblett was advanced varying amounts of money on a monthly basis for a two-year period to assist him in establishing a full-time medical practice in Forrest City. At the end of the two-year period in November 2002, the hospital had loaned Dr. Neblett the sum of $494,309.93. The agreement gave Dr. Neblett two options for repayment. He could either |2repay the outstanding balance or, if he continued practicing full time in Forrest City, the debt would be forgiven at a rate of twenty-five percent of the total debt per full year of practice, beginning three months after the expiration of the two-year period.
The hospital filed suit against Dr. Neb-lett on January 14, 2004, alleging that he had ceased practicing medicine full time in Forrest City on or about January 2, 2003, and that he had breached his obligations under the physician agreement and promissory note by failing to repay $494,309.93 plus interest. The hospital also alleged that Dr. Neblett had breached his obligations under another promissory note by failing to repay $30,000.00 plus interest. Dr. Neblett admitted that he had received $494,309.93 from the hospital and that he had not repaid that sum. He denied that he had breached the agreement and denied that he was required to repay the promissory notes.
The hospital argued at trial that Dr. Neblett ceased practicing full time in Forrest City in January 2003 and that he did not earn any forgiveness of his debt. Dr. Neblett disputed the hospital’s definition of “full time” and argued that, although he began seeing patients at a clinic in Memphis in January 2003, he continued to work full time in Forrest City. He claimed that because he had continued to work full time in Forrest City, he had earned significant credits toward his debt pursuant to the forgiveness terms of the physician agreement. In his defense, Dr. Neblett also argued to the jury that the hospital fraudulently induced him to enter into the physician agreement.
The jury found that the hospital was entitled to $69,047.52 in damages. The hospital filed a motion for prejudgment interest on the debt owed by Dr. Neblett, and both parties |sfiled motions for attorney’s fees. The trial court denied these requests, and the hospital filed a timely notice of appeal.
First, we address the trial court’s denial of the hospital’s motion for prejudgment interest. The trial court explained its decision in a letter opinion as follows:
The Court can find no rhyme or reason as to how the jury determined the amount awarded. The parties can only speculate as to how this amount was determined. This leaves in the Court’s mind a serious inclination that the amount determined by the jury was the total amount they felt was due. The Court cannot ascertain the calculations, whether it included interest, whether it was for the note or physicians agreement, how the fact that the plaintiff moved before the end of the contract period affected the determination, the fact that the defendant alleged breach by the plaintiff, the failure to provide certain equipment, and a host of other arguments for and against each party. It is obvious that the jury refused to award the principal amount and reduced it considerably for reasons that can only be surmised.
The Court finds that there is not a readily ascertainable amount that could be determined until the matter was placed before a jury. Therefore, the Court finds that, consistent with the rulings of the Arkansas Supreme Court, that it would be error to assess prejudgment interest.
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008). Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation or if the evidence furnishes data that makes it possible to compute the amount without reliance on opinion or discretion. Id. This standard is met if a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action. Id. Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. Id. Nevertheless, prejudgment interest is always dependent upon the initial ^measure of damages being determinable immediately after the loss and with reasonable certainty. Id.
The hospital argues that Dr. Neblett was in breach of the physician agreement on January 2, 2003, and that the amount of damages on this date was ascertainable and equaled $494,309.93. The hospital contends that the breach occurred on January 2, 2003, because Dr. Neblett admitted to seeing patients in Memphis on or before that date; thus, he had ceased practicing full time in Forrest City. The hospital claims that the amount of damages is ascertainable because Dr. Neblett admitted that he had received $494,309.93 from the hospital by November 7, 2002, and Dr. Neblett had not repaid any money or earned any forgiveness of his debt. The hospital claims that it is entitled to prejudgment interest from January 2, 2003, at the rate specified in the physician agreement and promissory notes, 9.5% per an-num. The hospital argues that the fact that the jury awarded less than the amount sued for does not preclude prejudgment interest, and it acknowledges that the jury may have reduced the damages based on Dr. Neblett’s defenses.
Dr. Neblett argues that the verdict amount bears no resemblance to any sum ever requested by the hospital and that the trial court was left to speculate on which promissory note the jury awarded its judgment, when interest began to run, and whether and when any forgiveness had been credited so as to reach the figure reflected in the verdict. He argues that the jury disregarded over ninety percent of the hospital’s claims of his indebtedness, probably as the result of applying the forgiveness clauses in the two promissory notes.
The hospital is correct that prejudgment interest is not precluded where a lesser |samount was recovered than the sum sought. See Advance Constr. Co., Inc. v. Dunn, 263 Ark. 232, 563 S.W.2d 888 (1978). However, we hold that the amount of damages was not ascertainable at the time of the event that gave rise to the cause of action.
In Mitcham v. First State Bank of Crossett, 333 Ark. 598, 970 S.W.2d 267 (1998), our supreme court held that the appellant’s argument for prejudgment interest failed because the time of his loss or injury was never determined by the jury or stipulated to by the parties. The court repeated the standard that if the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery. Here, Dr. Neblett contended that he continued to work full time in Forrest City well after January 2, 2003; thus, he claimed that he did not breach the contract on that date. The jury was not asked to specify the date of breach. If the jury reached the verdict amount by finding that some of Dr. Neblett’s debt was forgiven, the jury would have had to believe that he continued to work full time and did not breach the contract on January 2, 2003. Although the hospital argues that January 2, 2003, should be designated as the exact time of its loss or injury, the parties’ disagreement about what occurred after that date means the time of the loss is not capable of exact determination. Additionally, the disagreement about the time of the loss affects how much forgiveness of debt was earned, and in turn, the exact amount of damages. We affirm the trial court’s denial of prejudgment interest because the time and amount of damages was not capable of exact determination.
We now address the trial court’s denial of the hospital’s motion for attorney’s fees. The hospital contends that it is entitled to attorney’s fees based on one of three theories: (1) | fithe parties’ agreement for attorney’s fees; (2) Arkansas Code Annotated section 16-22-308 (Repl.1999); or (3) Arkansas Code Annotated section 4-56-101 (Repl.2011). The trial court stated in its letter opinion the following:
“A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superi- or perspective of the trial judge in determining whether to award attorney’s fees.” Jones v. Abraham, 341 Ark. 66, 15 S.W.3d [310 (2000).]
The Court finds that both parties were partially successful. The plaintiff received far less tha[n] it sought and the defendant actually was found to owe some money. Both the parties claimed to have prevailed and both parties asked for attorney fees to be awarded.
The Court finds that neither party is entitled to an award of attorneys fees. Under the Jones case cited above, the court has discretion in considering the involvement of the attorneys, their service to their clients, and other matters. Both parties presented their positions in a professional and thorough manner and the jury reached a verdict in which either party could claim success. Therefore, each party will bear their own attorneys fees and costs.
In the “Judgment on Verdict” entered January 26, 2011, the court stated that the motions for attorney’s fees were denied for the reasons in the letter opinion, and that “Specifically, the Court cannot hold that the Plaintiff prevailed as the judgment was exceedingly less tha[n] the amount sought causing the Court to be of the opinion that it could not determine which party actually prevailed.” A grant of attorney’s fees is an issue within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001).
First, the hospital contends that it is entitled to attorney’s fees based on an agreement between the parties reflected in the promissory notes. Both promissory notes Dr. Neblett |7admitted to signing contained the following language:
If this Note is placed in the hands of an attorney for collection, by suit or otherwise, or to protect the security for its payment or to enforce its collection, the undersigned will pay all costs of collection and litigation, together with reasonable attorney fees.
The supreme court has held that, where the parties entered into a written contract that specifically provides for the payment of attorney’s fees incurred in the enforcement of the contract, the agreement is enforceable according to its terms, independent of the statutory authorization set forth in Arkansas Code Annotated section 16-22-308. Marcum, supra (citing Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994)). We have also held that a promissory note gave a party the right to collect a reasonable attorney’s fee in connection with the enforcement of the note, independent of section 16-22-308. Nef v. Ag Servs. of Am., Inc., 79 Ark.App. 100, 86 S.W.3d 4 (2002). The hospital’s third theory of recovery, Arkansas Code Annotated section 4-56-101, authorizes an award of attorney’s fees pursuant to a provision in a promissory note. See Loewer v. Nat’l Bank of Ark., 311 Ark. 354, 844 S.W.2d 329 (1992); First Nat’l Bank of Brinkley v. Nash, 2 Ark.App. 135, 617 S.W.2d 24 (1981).
In Marcum, the lease agreement between the parties stated that in the event a suit was brought to enforce the lease, the prevailing party shall be entitled to a reasonable attorney’s fee. The supreme court held that, in giving the words of the contract their plain meaning, the word “shall” in the lease agreement required a mandatory award of reasonable attorney’s fees to the prevailing party and reversed and remanded for the trial judge to make such an award. Here, the promissory notes use the phrase “will pay,” and the plain meaning of the |sterm clearly requires a mandatory award of reasonable attorney’s fees. Therefore, we reverse and remand for the trial court to award reasonable attorney’s fees to the hospital. We find it unnecessary to address the hospital’s alternative ground for attorney’s fees under Arkansas Code Annotated section 16-22-308.
Affirmed in part; reversed and remanded in part.
HART and BROWN, JJ., agree. | [
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DAVID M. GLOVER, Judge.
[Rodney Porta was tried by a jury and found guilty of the offenses of possession of drug paraphernalia with intent to manufacture methamphetamine and manufacture of methamphetamine. He was sentenced to forty years and a $15,000 fine on the possession conviction and sixty years on the manufacture conviction; the trial court ordered that the sentences be served consecutively for a total of 100 years in the Arkansas Department of Correction. He raises four points of appeal, with several subpoints, all of which involve his competency and his competency evaluation. We reverse and remand for a new trial.
Background
Porta does not challenge the sufficiency of the evidence supporting his convictions. Consequently, it is not necessary to discuss at length the facts concerning the offenses themselves. Porta was a passenger in a car that was stopped by a police officer in Van 12Buren, Arkansas. A portable meth lab was discovered in the trunk of the car. The charges against Porta arose from that incident. He also does not challenge the stop, the arrest, or the search in this appeal.
Prior to trial, Porta’s appointed counsel petitioned the trial court to order a mental evaluation of Porta. The trial court ordered the evaluation, which was conducted by Dr. Paul Deyoub. During that examination, Porta made some inculpatory statements that the State sought to introduce as part of its case in chief. A hearing to determine their admissibility was held during the trial, before Dr. Deyoub was allowed to testify about them. At the outset of the hearing, the trial court and counsel discussed the issues surrounding the admissibility of those statements, including whether the statements were privileged, whether they were admissible for any rea son other than impeachment, and whether Porta’s fifth amendment right against self-incrimination and his sixth amendment right to counsel had been violated. The trial court then heard Dr. Deyoub’s testimony concerning his session with Porta.
Dr. Deyoub testified that he was a forensic psychologist, in private practice in Little Rock, Arkansas. He explained that he conducts court-ordered examinations through contracts with the Arkansas State Hospital. He stated that in Porta’s case, the indigent examination order went first to the hospital and then it was referred to him. He said that he traveled to Sebastian County on September 15, 2011, to perform the evaluation.
Dr. Deyoub testified that, before talking to a defendant, he follows a certain protocol in these situations, which is described in the evaluation form itself. He said that |sthe purpose of the protocol is to inform the defendant about the voluntary and nonconfidential nature of the examination. Dr. Deyoub indicated the following explanations were given by him to Porta at the beginning of the session: that the evaluation was ordered by the court but that Porta’s participation in the evaluation was voluntary; that the information was not confidential; that Porta did not have to make any statements regarding the charges against him but if he did, everything they talked about would be included in the report; and that Dr. Deyoub could be called to testify as to anything Porta told him and any opinions Dr. Deyoub formed as a result of the examination. Dr. Deyoub stated that, in his opinion, Porta understood what he told him; that he understood the purpose of the evaluation; and that there was no problem.
Dr. Deyoub stated that he then read a summary of the charges against Porta and asked him if he wanted to say anything. He said Porta told him that he understood the charges against him but did not want to say anything about what had occurred— that he did not want to make a statement. According to Dr. Deyoub, he did not question Porta after Porta said that he did not want to make a statement, but Porta then voluntarily kept talking and made some inculpatory statements.
Dr. Deyoub explained that immediately after Porta told him he did not want to say anything, he told Dr. Deyoub that he was in the car, not the house; that the items in the trunk of the car were his; and that he had told the other two occupants of the car that he|4would take responsibility for what was in the trunk. Dr. Deyoub said there was no elaboration beyond those statements.
The forensic evaluation prepared by Dr. Deyoub states in pertinent part:
DISCLOSURE OF THE PURPOSE AND THE VOLUNTARY NON-CONFIDENTIAL NATURE OF THE EXAMINATION:
At the beginning of the examination, Rodney Porta was informed of the nature and purpose of the evaluation and that his participation was voluntary. He was told the information was not confidential, that a report of the examination would be made to the court, sent to his lawyer, the prosecuting attorney, and that testimony could be required at court proceedings. I indicated to him he did not have to answer any questions or make any statements about the alleged offenses. He understood the purpose of the evaluation after I explained competency and responsibility.
DEFENDANT’S ACCOUNT OF THE OFFENSES:
CR2010-693A
Mr. Porta said he understood the charges against him, but he elected not to say anything about what occurred. Still, he made a couple comments that he was in the vehicle, not in the house. He then made another comment that the stuff in the trunk of the vehicle was his, and he told the other two occupants in the vehicle that he would take responsibility for what was in the trunk. He made those statements after being informed that he did not have to say anything about the charges against him.
(Emphasis added.) Dr. Deyoub concluded that “Porta, at the time of the examination, had the capacity to understand the proceedings against him and had the capacity to assist effectively in his own defense.” Dr. Deyoub diagnosed Porta with methamphetamine dependence, psychotic disorder NOS, and antisocial personality disorder. He also concluded that, at the time of the alleged conduct, Porta “did not have a mental disease hand did not have a mental defect,” and “[he] had the capacity for the culpable mental state that is an element of the charged offenses.”
On cross-examination, Dr. Deyoub acknowledged that he does not read a rights form or a Miranda card to the defendants he examines. Rather, he explains to defendants what competency and responsibility are, he tells defendants that those are the two forensic questions he must address as part of his examination, and he does not advise a defendant that he has the right to legal counsel because it is not part of the protocol.
Additional facts will be discussed as they pertain to the particular points of appeal raised by Porta.
I.
For his first point of appeal, Porta acknowledges that he did not seek a hearing on his mental capacity, but he contends that the trial court should have ordered one sua sponte because reasonable doubt Into existed as to his competence. A contemporaneous objection is generally required to preserve an issue for appeal, even an issue of constitutional dimensions. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we explained in Vilayvanh v. State, 2012 Ark. App. 561, 2012 WL 4833805, that it is possible, under very rare and extreme circumstances, that a trial court may be obliged to intervene sua sponte to correct a serious problem. Once such circumstance occurs when there is a reasonable doubt about the defendant’s competency stand trial, as discussed in Jacobs v. State, 294 Ark. 551, 553-54, 744 S.W.2d 728, 729-30 (1988):
The conviction of an accused person while he is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375 [86 S.Ct. 836, 15 L.Ed.2d 815] (1966). See also Ark.Code Ann. § 5-2-302 (1987).In order to be competent to stand trial a defendant must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. [Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); ...; Speedy v. Wyrick, 702 F.2d 723 (1983).] A trial court should sua sponte order a competency hearing when there is a reasonable doubt about the defendant’s competency to stand trial.
As the Eighth Circuit Court of Appeals explained in [Speedy ], ...:
This court has recently stated the test for determining whether a trial court should sua sponte order a competency hearing:
Under this rule of Pate v. Robinson ... a due process evidentiary hearing is constitutionally compelled at any time that there is “substantial evi dence” that the defendant may he mentally incompetent to stand trial. “Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.
Although the Supreme Court has not prescribed exact standards as to the quantum or nature of the evidence necessary to require a competency hearing, the Court has indicated that consideration of evidence relating to “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” is appropriate.
|7(Emphasis added & citations omitted.)
As in Vilayvanh, supra, no such circumstances were present in this case. Here, in making his argument that the trial court should have ordered a competency hearing on its own motion, Porta relies primarily upon some letters that he wrote to the judge and courthouse personnel while he was in jail, but after Dr. Deyoub had performed his evaluation. The letters were made part of the case file. They demonstrate a preoccupation with religion, prophesy, God, and other similar things, which Porta contends “presented evidence that [his] ability to competently stand trial had been compromised,” and established “reasonable doubt” of his competency to stand trial. We disagree.
Although Dr. Deyoub was not aware of these particular, subsequently written letters as part of his evaluation of Porta’s fitness to proceed, Dr. Deyoub made the following assessments: “If [Porta] is redirected from his religious ideation, then his mentation is clear and without any bizarre statements”; “[i]n spite of his religious preoccupation, he has the capacity to testify relevantly, even if he offers irrelevant information about his religious ideation”; and “[t]his defendant is easily brought back to the facts of the case if he is not given any indulgence regarding his religious ideas.” There is nothing inconsistent between Porta’s letters and Dr. Dey-oub’s conclusions. Thus, the trial court had before it a forensic evaluation performed by Dr. Deyoub that concluded Por-ta was competent to stand trial. The forensic evaluation itself recognized Porta’s Irreligious ideations but concluded that he could easily be redirected from those idea-tions and brought to good mentation.
We are convinced that the facts of this case do not satisfy the test for a constitutionally compelled competency hearing because there was not substantial evidence before the trial court that such a hearing was necessary. That is, the evidence before the trial court did not raise a reasonable doubt about Porta’s competency to stand trial. Jacobs, supra.
II.
For his second point of appeal, Porta contends that the trial court erred in failing to issue a competency determination. Having concluded that there was no sua sponte obligation to order a competency hearing under the facts of this case, this issue had to be properly preserved in order for us to address it. It was not. Consequently, we do not address it.
III.
For his third point of appeal, Porta contends that the trial court erred in accepting a competency report that was based upon an unconstitutionally conducted psychological evaluation. This exact point was not raised below but portions of it are encompassed |3within Porta’s fourth point of appeal. Therefore, to the extent that these points overlap and are properly before us, they can best be discussed together.
IV.
Porta’s fourth and final point of appeal contends that the trial court erred by admitting, as direct evidence in the State’s case in chief, statements he made during Dr. Deyoub’s psychological evaluation of him. The point also contains six sub-points. The first five subpoints contend that the trial court erred 1) in finding that counsel received proper notice under Estelle v. Smith, 451 U.S. 454,101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); 2) in concluding that Porta was not entitled to warnings regarding his right to assistance of counsel; 3) by admitting Porta’s statements in violation of his constitutional due-process rights; 4) in finding Porta’s statements unprivileged; and 5) in finding Porta’s statements constituted spontaneous utterances. The sixth subpoint contends that the trial court’s abuse of discretion in admitting the statements rose above the threshold for harmless error and warranted remand for a new trial. We have concluded that there is merit in Porta’s third subpoint argument that his constitutional due-process rights were violated with the admission of his statements in this case.
We begin our discussion with Arkansas Code Annotated section 5-2-307 (Repl. 2006), which addresses the admissibility of statements made during a defendant’s mental-health examination or treatment:
Any statement made by a person during an examination or treatment is admissible as evidence only:
1 m(l) To the extent permitted by the Uniform Rules of Evidence; and
(2) If the statement is constitutionally admissible.
(Emphasis added.) We first address the second requirement, that the statement be constitutionally admissible, because that is where we find the primary basis for reversing and remanding this case. We recognize that Porta’s argument was not developed as fully and completely at trial as it has been in this appeal. His counsel, however, did contend at trial that admission of the incriminating statements would violate Porta’s constitutional rights to due process and against self-incrimination. We agree.
We have not found an Arkansas case that addresses this precise issue, and neither Porta nor the State has provided us with one. Therefore, it appears that the issue is one of first impression in our state. However, the issue has been addressed by the Eighth Circuit Court of Appeals in Collins v. Auger, 577 F.2d 1107, 1109-10 (8th Cir.1978), in the context of a petition for writ of habeas corpus:
The defendant is entitled to raise his mental condition at the time of the offense as a defense. He is also entitled, under proper circumstances, to an exam ination to determine his competency to stand trial. Psychiatric examinations are essential to the proof of his mental condition. An indigent must seek a court order authorizing the examination and the payment of its cost. If the giving of a Miranda warning satisfied requirements of the Fifth Amendment and the Fourteenth Amendment and made the defendant’s incriminating admissions admissible, the defendant would be placed in a situation where he must sacrifice one Constitutional right to claim another.
If a defendant cooperated with the psychiatrist and made a full disclosure of his thinking processes and his background, including incriminating statements and if he failed to establish his lack of mental capacity, he would be faced with these |nadmissions on trial. If a defendant exercised his right to remain silent and refused to cooperate with the psychiatrist the likelihood of a meaningful and reliable examination would be considerably decreased and his opportunity to urge a possible defense thwarted. A defendant should not be compelled to choose between exercising his Fifth Amendment right not to incriminate himself and his due process right to seek out available defenses.
We find the reasoning employed in Collins to be compelling and applicable to the issue facing us here. As in Collins, Por-ta’s counsel sought a mental examination for Porta to determine his competency to stand trial. Because Porta was indigent, it was necessary to get a court order authorizing the examination and the payment of its cost. Moreover, even though Dr. Dey-oub issued several warnings about the non-confidential nature of the session before the examination began, allowing the incriminating statements under the facts of this case placed Porta in a situation that required him to sacrifice one constitutional right in order to claim another. As the Collins court explained, a defendant should not be compelled to choose between exercising his Fifth Amendment right not to incriminate himself and his due process right to seek out available defenses. We agree. Accordingly, we hold that the trial court erred in allowing Dr. Deyoub to testify about the incriminating statements that Porta made during the mental-health examination during the State’s case in chief.
In reaching this conclusion, we distinguish two Arkansas cases relied upon by the trial court: Randleman v. State, 310 Ark. 411, 837 S.W.2d 449 (1992), and Hinzman v. State, 53 Ark.App. 256, 922 S.W.2d 725 (1996). In Randleman, our supreme court addressed a similar constitutional situation in which statements made by the defendant | ^during his examination were used only for impeachment purposes. The trial court had earlier sustained objections to the admission of the statements during the State’s case in chief. Our supreme court concluded that the defendant’s Fifth Amendment right against self-incrimination and her Fourteenth Amendment due-process rights had not been violated by the use of the psychiatric forensic report to impeach her testimony. Here, the statements were not used to impeach Porta. He did not even testify.
In the Hinzman case, this court was not faced with the constitutional argument raised by either Porta or Randleman. Instead, the pertinent portion of Hinzman was decided on the basis of Rule 503(b) of the Arkansas Rules of Evidence. It is therefore distinguishable for purposes of deciding the constitutional infringement of Porta’s rights against self-incrimination. As set forth at the outset of our discussion, Arkansas Code Annotated section 5-2-307 has two components, evidentiary and con stitutional, and both components must be satisfied before statements made during a defendant’s mental-health examination or treatment are admissible as evidence. Because we have concluded that Porta’s statements were not constitutionally admissible, it is not necessary for us to address the evidentiary component of section 5-2-307, i.e., Arkansas Rule of Evidence 503(b).
Having concluded that admission of the inculpatory statements under the facts of the instant case violated Porta’s federal constitutional rights, we must determine whether the error was harmless beyond a reasonable doubt. In Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992), our supreme court explained that the foundation for the harmless-! i^error rule in cases involving violations of federal constitutional rights is Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and, in deciding what was harmless beyond a reasonable doubt in Chapman, the Supreme Court of the United States stated its preference for the approach it had taken in Fahy v. Connecticut, where the Court said, “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Vann, 309 Ark. at 309, 831 S.W.2d at 129 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)).
Here, we are not confident that the due-process error in this case was harmless beyond a reasonable doubt because we cannot say that there is no reasonable possibility that the evidence complained of did not contribute to the verdict. Our conclusion on this point, therefore, requires us to reverse and remand this case for a new trial.
Having reached this conclusion, it is not necessary for us to address the remaining subpoints raised by Porta under his fourth point of appeal because, in light of our decision, they will not arise again upon retrial.
Reversed and remanded.
VAUGHT, J., agrees.
GRUBER, J., concurs. | [
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KENNETH S. HIXSON, Judge.
| flline Tadlock brings this appeal from a judgment in favor of Randy Moncus, the administrator of the estate of his mother, Peggy Stewart, in the amount of $43,200 in a suit on a debt. We affirm the circuit court’s judgment.
Iline Tadlock and Peggy Stewart were lifelong friends and sisters-in-law. In January 2000, Tadlock wanted to purchase a portion of the family farm but lacked the funds to do so. Stewart provided Tadlock with $60,000 to purchase the property. Tadlock used the $60,000 to consummate the purchase. Stewart passed away on October 17, 2008. Stewart’s son, Randy Moncus, was appointed administrator of the estate.
Shortly after Stewart’s death, Randy Moncus and his wife, Diane Moncus, started going through the Stewart’s personal effects. They found a handwritten document in Stewart’s Lwallet that was prepared by Tadlock, and they found a receipt book that indicated that Tadlock had made $200 monthly payments to Stewart between 2001 and 2007.
On August 30, 2010, the administrator of Stewart’s estate filed a complaint asserting that the $60,000 transaction was a loan and seeking payment of the balance. Attached to the complaint was the handwritten document that Tadlock had prepared that was discovered in Stewart’s wallet.
Tadlock, acting pro se, answered the complaint and asserted that the $60,000 was a gift from Stewart. She also asserted that the $200 monthly payments she had made were for Stewart’s medical-insurance premiums. Tadlock further asserted that the written document was not a promissory note; rather, she contended that it was a letter of instructions in case she was killed while on vacation. After retaining counsel, Tadlock amended her answer to deny all of the allegations of the complaint.
At the conclusion of the bench trial, the circuit court requested briefs regarding whether the statute of frauds was applicable to the case. After the parties filed their briefs, the circuit court issued its letter opinion on June 11, 2012. The court found that the statute of frauds did not apply because it was clear that the intent of Stewart and Tadlock was to enter into a contract whereby Stewart would loan Tad-lock $60,000 and Tadlock would repay it at the rate of $200 per month. The court found that the testimony provided by Mon-cus’s witnesses concerning the agreement was credible while that provided by Tad-lock’s witnesses was not. The court specifically noted that Tadlock’s testimony that the money was given to Rher as a gift and her $200 monthly payments for approximately seven years to Stewart for insurance was not believable.
The court further found by clear and convincing evidence that even if the statute of frauds did apply, not only was there an oral agreement between the parties, but also that Stewart fully performed by extending the loan to Tadlock, and that Tadlock had made part performance by making payments from October 2001 until October 2008. The court then awarded judgment to Moncus in the amount of $48,200. The court declined to award attorney’s fees to Moncus.
On July 8, 2012, prior to the entry of judgment, Tadlock filed a motion seeking findings of fact and conclusions of law. The motion sought answers to fourteen specific questions. The circuit court did not rule on the motion. This appeal followed the entry of the court’s judgment on July 16, 2012.
In civil bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Rooke v. Spickelmier, 2009 Ark. App. 155, 314 S.W.3d 718. 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.
For her first point on appeal, Tad-lock argues that the circuit court erred in not making adequate findings of fact. We are not able to address her argument because this issue is not preserved for appeal. Tadlock filed a posttrial motion asking the circuit court to make findings on several specific questions. The circuit court did not take action on this motion within |4the thirty-day window allowed by Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure — Civil, and in accordance with that rule, the motion was deemed denied at the expiration of the thirty-day period. Tadlock’s notice of appeal did not mention that an appeal was being sought from the deemed-denial of the motion for findings of fact and conclusions of law. Our rules state that a notice of appeal shall “designate the judgment, decree, order or part thereof appealed from.” Ark. R.App. P.-Civ. 3(e)(ii). The failure to mention the deemed-denial of a posttrial motion in a notice of appeal precludes appellate review of the issue. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822. Therefore, the question of whether the circuit court should have granted the motion for findings and conclusions of law is not properly before us. See, e.g., Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411.
Tadlock next argues that the court erred in finding an oral agreement existed between Tadlock and Stewart. The circuit court found the parties’, clear intent to be a loan of money from Stewart to Tadlock, to be repaid at the rate of $200 per month. We cannot say that the circuit court was clearly erroneous in such a finding. Moreover, this finding was corroborated by the handwritten document Tadlock prepared to memorialize the agreement. The document states that Tadlock “borrowed” $60,000 from Stewart to purchase “the properly, house and barn from Nickey and Barbara Stewart on January 21, 2000. Description enclosed.” The document contains a description of the properly by referring to the parcel number, section number, and acreage. It also contains Tadlock’s promise to pay, although it does not specify the amount of each monthly installment. It contains a provision that the property |Bshould be “delivered back to Peggy Stewart unless Perry Buster or Joy Tadlock should desire to pay off or continue payment on the property.” The document uses the term “default,” which is usually associated with an obligation to pay. Another section provides that Stewart should “take over” or reclaim the property if Tadlock defaults. The document also sets out Tadlock’s obligation to insure the house and barn.
Tadlock testified that she was the author of the handwritten document and that she used the language “Iline Tadlock borrowed $60,000 from Peggy Stewart” in the document. Tadlock testified that she did not mean to use the word “borrow”; however, she did not provide any other explanation. Tadlock also testified that she obtained employment approximately one year after she received the deed to the family farm, and at that time, she began making payments to Stewart in the amount of $200 per month. Tadlock testified that she made eighty-four monthly payments. Tadlock testified that these eighty-four payments were for Stewart’s monthly medical-insurance premiums and not in repayment of the loan.
A circuit court can give considerable weight to the construction that the parties themselves give to an ambiguous agreement, as evidenced by their subsequent statements, acts, and conduct. RAD-Razorback Ltd. P’ship v. B.G. Coney Co., 289 Ark. 550, 555, 713 S.W.2d 462, 466 (1986); Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 341, 493 S.W.2d 439, 445 (1973). Here, the court could look at the document and the language Tadlock used in drafting the document, together with the fact that Tadlock made eighty-four payments of $200, and reasonably conclude that the document constituted an agreement for the loan of money from Stewart to Tadlock. The only explanation Tadlock offered for the payments was that she was | f,paying Stewart’s medical-insurance premiums — an explanation that the circuit court did not find credible. Where the pivotal issue is the credibility of interested parties whose testimony is in direct conflict, we defer to the circuit court’s determination. Carpenter v. Layne, 2010 Ark. App. 364, 374 S.W.3d 871.
Tadlock next argues that even if an oral contract was formed, it is unenforceable under the Arkansas statute of frauds. Tadlock argues that any contract involving real property must be in writing to satisfy the statute of frauds. We disagree and find that argument is overly broad. Our supreme court has held that an oral agreement for the repayment of money is not within the statute of frauds, even if that money was used to purchase an interest in real property, where there was no evidence that the agreement was intended as a mortgage. Miles v. Scales, 174 Ark. 412, 295 S.W. 375 (1927). Here, there were no allegations that the handwritten document was ever intended as a mortgage. Therefore, the statute of frauds does not apply in this case simply because the agreement between the parties allegedly concerned real estate.
Further, the circuit court correctly relied on Talley v. Blackmon, 271 Ark. 494, 609 S.W.2d 113 (1980), and Cobb v. Leyendecker, 89 Ark.App. 167, 170, 200 S.W.3d 924, 926 (2005). In Talley, we held that full performance by one party in extending a loan and part performance on the part of the other party by making payments on a loan operated to take the oral agreement out of the statute of frauds. And, in Cobb, we held that it is settled law that an oral agreement can be taken out of the statute of frauds if the making of the oral contract and its performance is proven by clear and convincing evidence. Here, the circuit court 17specifically found by clear and convincing evidence that Stewart had made full performance by extending the loan to Tadlock and that Tadlock had made part performance to Stewart by making payments. Therefore, this oral agreement was not subject to the statute of frauds.
For her fourth point, Tadlock argues that the receipt book was improperly admitted into evidence over her hearsay objection. On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion, nor will we reverse absent a showing of prejudice. Gross & Janes Co. v. Brooks, 2012 Ark. App. 702, 425 S.W.3d 795.
At trial, Diane Moncus, Stewart’s daughter-in-law, testified that she found receipts in a receipt book located in Stewart’s chest of drawers in her bedroom. Tadlock objected on the basis that the writings in the receipt book were “self-serving hearsay.” Further objection was made on the basis that the receipt book could not be authenticated as being in Stewart’s handwriting. After Moncus argued that the receipt book was admissible under the business-record exception to the hearsay rule, the circuit court overruled the objection. When ap-pellee tried to introduce the receipt book into evidence, Tadlock again objected on the same grounds, as well as the additional objection that the handwriting in the book changed over time. After the court queried whether the testimony concerning authenticity went to the weight rather than the admissibility, Tadlock stated that the objection was based on authenticity. The court overruled the objection and admitted the book into evidence. Diane Moncus continued her testimony, stating that she recognized the handwriting on the receipts as being in Stewart’s handwriting, which did not change over time. She also said that the receipts documented payments of $200 made regularly every month, except for a few months ] sthat were skipped, from 2001 to 2007, She read the last entry in the book as saying “end of ’07, owe Iline 45,000.”
There is no reversible error in the admission of the receipt book because Tad-lock suffered no prejudice. Tadlock admitted that she made $200 per month payments to Stewart from October 2001 until Stewart’s death, albeit asserting that they were payments for Stewart’s insurance premiums. Moncus agreed that the circuit court could accept Tadlock’s testimony as to the number of payments. Based on Tadlock’s testimony, the court found the balance to be $43,200 instead of $45,000 as reflected in the receipt book. Because Tadlock has not shown she was prejudiced, we will not reverse.
Tadlock also argues that the court erred in accelerating the balance due on the contract because neither the oral agreement nor the handwritten document contained an acceleration clause. However, Tadlock did not make this argument before the circuit court, and, therefore, it is not preserved for review. Moreover, Tadlock’s acknowledgment of the debt in her handwritten document created an enforceable obligation that implied a valid consideration and promise to repay on demand. Anderson v. Pearce, 36 Ark. 293 (1880); Carpenter v. Schneider, 22 Ark. App. 184, 737 S.W.2d 656 (1987).
Affirmed.
GLADWIN, C.J., and BROWN, J., agree. | [
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CLIFF HOOFMAN, Justice.
|!Appellant Kathy Livingston appeals from her conviction for first-degree murder, for which she received a sentence of life imprisonment. On appeal, appellant argues that the circuit court erred (1) in failing to grant her motion to suppress physical evidence and (2) in denying her motion for a mistrial after her trial counsel’s father died during the trial. Our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2012). We affirm.
Appellant was charged with capital murder in connection with the death of her husband, Bobby Livingston, on June 18, 2011. According to the evidence presented at trial, Dawn Sims, appellant’s daughter who lived across the street from the Livingstons in Lake Village, Arkansas, received a phone call from appellant at approximately 6:45 p.m. on June 18. Sims testified that appellant was intoxicated and that she stated, “Dawn, I shot Bobby. He’s dead.” Sims ran to appellant’s home and found her outside on the patio. Appellant yelled at Sims not to go inside the house, but Sims ignored her and went into the kitchen, | ¿where she found Bobby naked and lying on the floor in a pool of blood. Sims stated that Bobby did not appear to be alive. When appellant walked back into the kitchen, Sims noticed that appellant was also naked and covered in blood. Sims attempted to call 911, but appellant tried to stop her by wrestling the phone away. Sims struggled with appellant and pushed her out into the carport, locking the door. While Sims was on the phone with the 911 dispatcher, appellant came back into the house through another door carrying a gun. Sims was afraid that appellant would hurt her and ran out of the house. Appellant followed her and, according to Sims, mouthed to her that she was not going to hurt Sims but was instead going to hurt herself. Appellant walked back into the kitchen, and through the glass door, Sims witnessed her mother sit down on the floor next to Bobby and shoot herself in the chest. Sims attempted to apply pressure to appellant’s wound but appellant resisted, complaining that Sims was hurting her. Sims called 911 a second time to report that her mother had shot herself. Shortly afterward, the police and medical personnel arrived, and appellant was taken to the hospital. Appellant survived her self-inflicted gunshot wound, but Bobby was deceased when the paramedics arrived.
Lake Village Police Officers Mike Pitts and Cole Rice received the 911 dispatch concerning the shooting at the Livingston home and arrived on the scene at 6:52 p.m. They discovered Sims sitting outside on the driveway, with her face, neck, and arms covered in blood. Sims told the officers that appellant had shot Bobby and responded affirmatively when they asked if appellant was still in the house with the weapon. The officers went through the carport door into the kitchen and immediately saw both appellant and Bobby lying on the lafloor. Officer Pitts initially thought that both persons were deceased but then saw appellant take a deep breath. He also noticed that the weapon was underneath appellant’s leg. The officers backed out of the residence to wait on the paramedics and to avoid contaminating the scene.
Captain Bob Graham and Arkansas State Police Investigator Scott Woodward were summoned to the scene, and they prepared an affidavit for a search warrant for the residence. The affidavit recited that the victim had been shot in the chest and killed by appellant at approximately 6:51 p.m. and that appellant had been taken to the hospital with a gunshot wound to the chest. The warrant was issued by the Chicot County District Judge at 8:44 p.m., and the search of the home began at 8:49 p.m. From the living room area, the police collected blood samples found on the living room door, patio steps, recliner, and victim’s pants; a 9mm shell casing matching the weapon found at the scene; and one bullet. From the kitchen, police recovered blood samples and human tissue from the floor, sink, and wall; the 9mm handgun, which contained a spent shell casing; and another 9mm shell casing from the floor. Several days later, on June 21, 2011, another search warrant was issued, and additional evidence was collected from the kitchen after appellant’s father contacted the police and informed them that, while cleaning, another bullet was discovered lodged in the kitchen floor.
Prior to trial, appellant filed a motion to suppress the evidence found pursuant to the first search warrant, primarily arguing that there was no justification or authorization for a nighttime search contained in the affidavit or search warrant and that the officers’ reentry into the Livingstons’ home on the night of June 18, 2011, was therefore illegal. At the hearing on |4the motion to suppress, Officer Pitts testified that he and Officer Rice did not search the residence or seize any evidence when they responded to the 911 call from the residence. Pitts stated that they went only briefly into the kitchen to determine the status of the victim and the appellant, then went back outside to wait for the paramedics and the other officers. When Captain Graham arrived on the scene, just prior to the ambulance’s arrival, he instructed Pitts to take photographs of appellant and the victim before they were removed by the paramedics. Graham testified that, after the paramedics had left and the scene was secure, he and Investigator Woodward prepared the affidavit for the search warrant while sitting outside the residence. The warrant was issued at 8:44 p.m., and Woodward testified that he did not check any of the boxes to authorize a nighttime search warrant in his affidavit, nor did he indicate that there was probable cause for a nighttime warrant.
After the hearing, the circuit court took the motion to suppress under advisement pending posthearing briefs by both parties. In her brief, appellant challenged only the evidence from the living room and patio area of the residence because these items were seized pursuant to the warrant and were not in view during the officers’ initial warrantless entry into the kitchen, which was justified by exigent circumstances. The circuit court denied the motion to suppress by written order entered on July 16, 2012. The court found that, even if the nighttime search warrant was invalid, the evidence should not be suppressed because it would have inevitably been discovered pursuant to the second search warrant, which was valid. The court noted that Bobby Livingston’s father had been cleaning the residence when he noticed the bullet lodged in the kitchen floor and notified the police. The court stated, |fi“Since blood was also found in the living room, it is no stretch of the imagination to conclude that in cleaning he would have found the items earlier located in the living room had the police not seized them with the first search warrant, [and] notified the police, who would have secured a valid search warrant for their seizure.” Thus, the court ruled that the evidence from the living room and patio would not be suppressed.
At the trial, the crime lab personnel testified that all of the blood and tissue samples collected matched Bobby’s DNA, with the exception of the sample from the living room door, which contained DNA from more than one person, with Bobby being the major contributor. Charles Paul Kokes, the chief medical examiner, testified that Bobby sustained two gunshot wounds, one to the hand and one to the chest. Kokes stated that the chest wound was sustained while the handgun was in direct contact with the chest and that this shot went through Bobby’s heart, causing his death. From analyzing the evidence, Woodward determined that Bobby was shot in his hand while sitting in the recliner in the living room and that he then went into the kitchen, where he held his hand over the sink, resulting in vertical blood spatter. Investigator David Tumey testified that Bobby was shot a second time in the chest while standing up next to the sink, as evidenced by his tissue found near the sink area and the bullet hole found in the tile backsplash. Tumey stated that the bullet found in the kitchen floor came from appellant’s self-inflicted gunshot wound to her chest.
At the conclusion of the trial, the jury was instructed on the charged offense of capital murder, as well as the lesser-included offenses of first-degree murder, second-degree murder, and manslaughter. The jury convicted appellant of first-degree murder and sentenced her to | Blife in prison. Appellant filed a timely notice of appeal from the judgment and commitment order entered on September 14, 2012.
In her first point on appeal, appellant challenges the circuit court’s denial of her motion to suppress. When reviewing a trial court’s denial of a motion to suppress evidence, the appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the trial court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.
Appellant argues, as she did to the circuit court, that the evidence seized from the living room and patio pursuant to the first search warrant should be suppressed because the affidavit in support of the warrant did not contain justification for a nighttime search under Arkansas Rule of Criminal Procedure 13.2(c), and the judicial officer did not authorize a nighttime search. Appellant concedes that there were exigent circumstances to justify the officers’ initial entry into the kitchen to secure the murder scene; however, appellant contends that once the scene has been secured, the officers had no right to enter or search the residence in the absence of a valid warrant. See Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997) (holding that a search following an emergency entry will be upheld only if the search is | Treasonably necessary for the prevention of death, bodily harm, or destruction and is strictly circumscribed by the exigencies that necessitated the emergency in the first place).
Pursuant to Ark. R.Crim. P. 13.2(c) (2012), a judicial officer may issue a search warrant to be executed between the hours of 8 p.m. and 6 a.m. only if he or she has reasonable cause to believe that (i) the place to be searched is difficult of speedy access, or (ii) the objects to be seized are in danger of imminent removal, or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. This court has invalidated nighttime search warrants where the evidence presented in support of the nighttime search lacked sufficient factual information to support one or more of these exigent circumstances. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).
In this case, the first search warrant was executed after 8 p.m., and the State does not dispute that police violated the requirement in Rule 13.2(c) that they obtain a nighttime search warrant. However, the State contends that under Ark. R.Crim. P. 16.2(e) (2012), a motion to suppress should be granted only if the court finds that the violation upon which it is based is substantial or if it is otherwise required by the Constitution of the United States or of this state. After analyzing the factors contained in Rule 16.2(e), the State argues that the unauthorized nighttime search was not a substantial violation under the circumstances in this case. In addition, the State agrees with the circuit court’s finding that under Rule 16.2(e)(vi), the evidence from the living room of appellant’s residence would have been inevitably discovered pursuant to a valid search warrant, in much the same manner as the bullet that was | ^discovered lodged in the kitchen floor several days later. Further, the State contends that appellant cannot demonstrate prejudice from the seizure of the evidence from the living room, given all the other evidence that was properly-admitted, and asserts that the circuit court’s ruling can be affirmed under the harmless-error doctrine.
We agree with the State that the admission of evidence from the living room and the patio is harmless error under the facts in this case; therefore, there is no need to address whether the violation was substantial or whether the circuit court properly applied the inevitable-discovery doctrine. The denial of a motion to suppress can be harmless error when the evidence of guilt is overwhelming and the error is slight, or this court concludes beyond a reasonable doubt that the error did not contribute to the verdict. Criddle v. State, 388 Ark. 744, 1 S.W.3d 436 (1999); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). To apply this doctrine, the appellate court must excise the improper evidence and examine the remaining evidence. Criddle, supra.
As the State asserts, even if the evidence from the living room and patio had been excluded, there remains ample evidence to sustain appellant’s conviction for first-degree murder, which required the State to show that the defendant, with the purpose of causing the death of another person, caused the death of another person. Ark.Code Ann. § 5-10-102(a)(2) (Repl.2006). A person acts purposely with respect to his or her conduct when he or she acts with the conscious object to engage in conduct of that nature or to cause the result thereof. Ark.Code Ann. § 5-2-202(1) (Repl.2006).
Here, appellant told her daughter, Sims, that she had shot and killed the victim. Sims |9also saw appellant with the pistol, and it was determined that the two empty shell casings from in the kitchen were fired from the only pistol recovered from the scene. Appellant argues that without the evidence complained of, the State would not have been able to prove its theory that appellant shot the victim in a premeditated or purposeful manner by shooting him once in the living room and then by following him into the kitchen, where she shot him a second time. We disagree. The medical examiner testified that the victim had two gunshot wounds, one in his hand and one at point-blank range to his chest. Because only two projectiles were found in the kitchen, one of which resulted from appellant’s self-inflicted gunshot wound, the jury could infer that appellant shot the victim in another room and then fired the second gunshot in the kitchen. Further, the vertical blood spatter and other evidence showed that the victim stood over the sink with his hand wound and was then shot in the chest while standing in that area. Most notably, this second gunshot wound occurred when the handgun was pressed directly against the victim’s chest, and the bullet penetrated his heart. We have held that in a first-degree murder case, the defendant’s intent may be inferred from the nature, extent, and location of the victim’s wounds. James v. State, 2010 Ark. 486, 372 S.W.3d 800.
Given these facts, we find that there was overwhelming evidence to support appellant’s conviction for first-degree murder and that any error resulting from the admission of evidence from the living room and patio was slight. We therefore affirm on this point.
In her second point on appeal, appellant argues that the circuit court erred by denying her motion for mistrial when defense counsel’s father died on the eve of the second day of trial. It is well settled that a mistrial is a drastic remedy and is to be employed only when an Jj^error is so prejudicial that justice cannot be served by continuing the trial. Zacha ry v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). The determination of whether to grant a mistrial is within the sound discretion of the trial court, and the decision will not be reversed absent a showing of abuse or manifest prejudice to the appellant. Id.
Appellant’s counsel notified the circuit court on the morning of the second day of trial that his father had died, and he asked for a mistrial, stating that he considered himself ineffective to try the case that day. The court stated that it was reluctant to grant a mistrial because the prosecution and the jury had already spent a great deal of time preparing for the case and hearing evidence. The State argued that a continuance for a week would be sufficient for defense counsel to conclude his arrangements and return to complete the trial. The circuit court then asked both parties if they would be able to continue the case until the following week. The State agreed to this arrangement, and defense counsel stated that his only issues were whether he could take care of the funeral arrangements before then, whether the witnesses would remain under subpoena, and whether the jury might be prejudiced by outside influences during the suspension of the trial. The court gave defense counsel the opportunity to take one witness’s testimony in the event that she could not return and also agreed to give the jury a cautionary instruction that they should not read about or discuss the case during their absence. Defense counsel did not further object to the continuance, and when the trial was resumed the following week, the court, on counsel’s request, questioned the jury to ensure that they had not been prejudiced during the continuance. The jury did not bring anything to the court’s attention during this questioning.
111 Under these circumstances, the trial court did not abuse its discretion in denying the motion for a mistrial. The court balanced the need for defense counsel to make arrangements and to process his situation with the interests of the prosecution, the witnesses who had testified, and the jury in continuing the case. In addition, appellant’s concern about possible outside influences on the jury was addressed by the circuit court, both through its cautionary instruction and its questions to the jury when the trial resumed. We therefore affirm on this point as well.
In compliance with Ark. Sup.Ct. R. 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed. | [
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JIM HANNAH, Chief Justice.
| Appellant, Ulises Arroyo, Jr., appeals from the denial of his petition for postcon-viction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was convicted of possession of a controlled substance — methamphetamine, possession of drug paraphernalia, maintaining a drug premises, and simultaneous possession of drugs and firearms, for which he was sentenced to a total of twenty-nine years’ imprisonment. The court of appeals affirmed his convictions and sentences. See Arroyo v. State, 2011 Ark. App. 523, 2011 WL 4067303. Appellant then filed a petition for postconviction relief, which the circuit court denied. Appellant alleges the following errors on appeal: (1) that he was denied his Sixth Amendment right to counsel of his choice; (2) that his trial counsel was ineffective as a result of an active conflict of interest that existed because trial counsel represented both Appellant and Appellant’s co-defendant; (3) that his trial counsel was ineffective for failing to object to testimony about ^toxicology test results; (4) that his trial counsel was ineffective for failing to object to the introduction of methamphetamine; and (5) that the circuit court erred by denying his petition without a hearing. Because we conclude that Appellant was wrongly denied his right to choice of counsel, we reverse and remand for a new trial.
On July 27, 2010, Appellant and his wife, Gisella Arroyo, were charged with possession of a controlled substance — methamphetamine, possession of drug paraphernalia, and maintaining a drug premises. Both Appellant and Ms. Arroyo were represented by attorney James Hensley. On October 7, 2010, the State amended the information against Appellant to add a charge of simultaneous possession of drugs and firearms, a Class Y felony. At a pretrial hearing on October 20, 2010, attorney Edward Adcock entered a conditional appearance on Appellant’s behalf, stating that he had been retained by Appellant, but that his representation of Appellant was contingent upon obtaining a continuance, because he would not be ready for Appellant’s jury trial, which was set to begin the following day. Adcock wished to inform the circuit court why a continuance would be in Appellant’s best interest and how it would also serve the interest of the circuit court. The circuit court declined to hear from Adcock and instead took up Hensley’s motion to sever Appellant’s and Ms. Arroyo’s trials. Hensley told the circuit court that he did not think it would be fair to either of the Arroyos if he continued to represent both of them; consequently, he thought “severance ... might be in line for Gisella.” Thereafter, the following colloquy took place between the circuit court, Hensley, and Adcock:
The CouRT: Well, it seems to me like we’re — either I’m not on the same train of thought with everybody or we’re running towards | sdifferent ends of the football field. If you’ve put in a great deal of time preparing for the trial for Mr. Arroyo then why don’t I just let you represent Mr. Arroyo and let’s go to trial tomorrow.
If that creates a conflict with ... Ms. Arroyo I’ll grant the severance and she can ... get her own counsel for the severance. But let’s just get something done. I mean, that just makes sense to me, as opposed to me granting the severance, having absolutely nothing done as it pertains to Ms. Arroyo, granting a continuance and a new counsel as it pertains to Mr. Arroyo and then nothing gets done there.
If you’re prepared to represent Mr. Arroyo then let’s go forward with Mr. Arroyo and let’s get that case out of the way and if that creates a conflict with Ms. Arroyo she always has the right then to get another attorney.
Hensley: Yes, Your Honor. And with that I think that my primary concern is that Mr. Arroyo has stated that he does not want me as his attorney so I’m not sure how that would work.
The Court: Well, Mr. Arroyo has the right to hire new counsel, but what I heard Mr. Adcock say earlier is that he’s not going to be a new counsel if he doesn’t get a continuance and I’m not inclined to grant a continuance if Mr. Arroyo has an attorney who’s ready to go trial, which is what I heard you say.
Hensley: I am ready to go to trial, Your Honor.
The Court: Okay. Then ... I’m going to deny any oral requests for a continuance. Mr. Hensley is the attorney for Mr. Arroyo in that matter and we will proceed to a jury trial tomorrow on that. There may be other pretrial matters that we need to take up in that, but with that, Mr. Adcock, I assume your presence can be excused because you’re not going to be representing Mr. Arroyo in this matter.
AdCOCK: Very well, Your Honor.
In its order denying postconviction relief, the circuit court rejected Appellant’s argument that he was denied his right to choice of counsel:
|40n the day before the jury trial, the Petitioner had new counsel enter an appearance and requested a delay of the proceeding. The Court was within its discretion to deny the delay and go forward with the jury trial the next day. When the Court denied the delay, the new counsel withdrew his appearance and the trial proceeded with original trial counsel. The Petitioner has not shown any evidence that the outcome would have been different had the new attorney acted as trial counsel and a continuance had been granted. The Petitioner is not entitled to relief under this ground.
Appellant contends that, pursuant to the United States Supreme Court’s holding in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), he was denied his Sixth Amendment counsel of choice when the circuit court denied his motion for continuance to substitute new counsel. We first note that the circuit court applied the wrong test to Appellant’s choiee-of-counsel argument when it determined that Appellant was not entitled to postconviction relief because he had failed to demonstrate that the outcome of his trial would have been different had his new attorney acted as trial counsel and a continuance had been granted. “[T]he right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice,” is “derived from the purpose of ensuring a fair trial.” Id. at 146, 126 S.Ct. 2557 (emphasis added). In contrast, “the right to select counsel of one’s choice | fi ... has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.” Id. at 148, 126 S.Ct. 2557. Rather, “[i]t has been regarded as the root meaning of the constitutional guarantee.” Id. at 147-48, 126 S.Ct. 2557. Therefore,
[w ]here the right to be assisted by counsel of one’s choice is wrongly denied, ... it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice — which is the right to a particular lawyer regardless of comparative effectiveness — with the right to effective counsel — which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.
Id. at 148, 126 S.Ct. 2557 (emphasis added). Thus, under Gonzalez-Lopez, the question is not whether Appellant was prejudiced by the circuit court’s denial of his motion for continuance to substitute counsel but whether that motion was wrongly denied.
Although constitutionally guaranteed, the right to counsel of one’s choosing is not absolute, and the circuit court retains broad discretion to grant or deny a continuance for purposes of obtaining new counsel. Id. at 152, 126 S.Ct. 2557 (noting that trial courts have “wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar”) (internal citations omitted). The Supreme Court of the United States has explained that
[n]ot every restriction on counsel’s time or opportunity to investigate or to consult | ¿with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel. See Chambers v. Maroney, 399 U.S. 42, 53-54 [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970). Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 [84 S.Ct. 841, 11 L.Ed.2d 921] (1964).
Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
Likewise, the United States Court of Appeals for the Seventh Circuit has noted that
[a] ... court ... has a legitimate interest in ensuring that parties abide by scheduling orders to ensure prompt, orderly, and fair litigation. Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 851 (7th Cir.2002). Even where Sixth Amendment rights are at stake, a ... court legitimately can balance the right to counsel of choice against the demands of its calendar and make scheduling and other decisions that effectively exclude chosen counsel. Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557. The key, however, is whether the court has indeed, balanced those interests, or instead has acted arbitrarily.
United States v. Sellers, 645 F.3d 830, 835-36 (7th Cir.2011) (emphasis added).
This court has also recognized that, once competent counsel has been obtained, any request for a change in counsel must be balanced against the public’s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 618, 609 S.W.2d 76, 78 (1980). The right to counsel may not be manipulated or subverted to obstruct the orderly procedures of the court, or to interfere with the fair, efficient, and effective administration of justice, particularly when a change of choice is made on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel. See Tyler v. State, 265 Ark. 822, 828, 581 S.W.2d 328, 331 (1979). In each situation the court must look at the particular circumstances of the case at bar, and the issue must be decided on a case-by-case basis. Thorne v. State, 269 Ark. 556, 560-61, 601 S.W.2d 886, 889 (1980). Factors to be considered by the circuit court include whether there was adequate opportunity for the defendant to employ counsel; whether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether the motion for a continuance was timely filed; whether the defendant contributed to the circumstances giving rise to the request for a continuance; whether the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; and whether the request was consistent with the fair, efficient and effective administration of justice. See id., 601 S.W.2d at 889. None of these factors is a prerequisite to the granting of a continuance, but these and other factors are the legitimate subject of the court’s atten tion when a continuance is requested. Id., 601 S.W.2d at 889.
In this case, there is no evidence in the record that the circuit court balanced Appellant’s right to choice of counsel against the needs of fairness and the demands of its calendar. See Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557. We recognize that Appellant made his request for change of counsel on the eve of trial, but there is no evidence that Appellant made the request primarily for the purpose of delay, and Appellant had already obtained substitute counsel. See Tyler, supra. We note that the circuit court made no attempt to determine why Appellant requested the change or whether Appellant had acted diligently in seeking the change. See Leggins, supra. Nor did the circuit court consider any of the factors listed in Thome. In fact, the circuit court made no inquiry at all about why Appellant did not want Hensley to represent him. Moreover, while Adcock requested at the pretrial hearing |sthat he be allowed to state why Appellant needed a continuance, the circuit court declined to hear from Adcock. The fact that the circuit court failed to ask Adcock how long he would need to prepare adequately for trial “evidences a failure to actually balance the right to choice of counsel against the needs of fairness, and suggests that the ... court unreasonably viewed any delay as unacceptable.” Sellers, 645 F.3d at 837.
A circuit court “certainly may consider how last minute continuances ... tread upon the rights of parties and the demands of a court’s calendar.” Id. at 838. “The key, however, is that these legitimate considerations must be balanced against the reasons in support of the motion for a continuance to accommodate new counsel.” Id. at 838-39. Here, there is no evidence that the circuit court gave any consideration to Appellant’s right to choice of counsel. Rather, the circuit court declined to hear from Adcock about why a continuance was necessary and failed to conduct any inquiry into Appellant’s request for new counsel. See People v. Tucker, 382 Ill.App.3d 916, 321 Ill.Dec. 468, 889 N.E.2d 733, 740 (2008) (holding that reversible error was committed and a new trial was required where the trial court failed to inquire into the circumstances and purposes of the defendant’s desire to change lawyers, viewed in light of the right to retained counsel of one’s choice being “regarded as the root meaning of the constitutional guarantee” in the Sixth Amendment) (quoting Gonzalez-Lopez, 548 U.S. at 147-48, 126 S.Ct. 2557). The record before us indicates that the circuit court viewed any delay as unacceptable, which we conclude was unreasonable and arbitrary under the circumstances.
We hold that Appellant’s motion for continuance to substitute new counsel was wrongly denied because the circuit court failed to consider Appellant’s interests when 1 adeciding the motion. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
CORBIN and DANIELSON, JJ., dissent.
. Generally, a petition under Rule 37 does not provide a remedy when an issue could have been raised at trial or argued on appeal. E.g., Springs v. State, 2012 Ark. 87, at 14, 387 S.W.3d 143, 154; see also Sasser v. State, 338 Ark. 375, 383-84, 993 S.W.2d 901, 906 (1999) (stating that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings). There is, however, an exception to this general rule for structural or fundamental errors that render the judgment of conviction void or subject to collateral attack. Springs, supra; Sasser, supra. Erroneous deprivation of the right to counsel of choice is a structural error. Daniels v. State, 2013 Ark. 208, at 6-7, 2013 WL 2149901 (per curiam) (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)); see also United States v. Gonzalez-Lopez, 399 F.3d 924, 934 (8th Cir.2005), aff’d and remanded, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (stating that “the denial of the right to counsel of choice clearly belongs in the class of fundamental constitutional errors which reflect a defect in the framework of the trial mechanism”). Therefore, Appellant may raise this issue for the first time in a Rule 37 proceeding.
. The Supreme Court has held that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them” and that "a defendant [may not] insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation.” Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. 2557 (citing "Wheat v. United States, 486 U.S. 153, 159-60, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989)). | [
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COURTNEY HUDSON GOODSON, Justice.
| petitioner Reynolds Metal Company (Reynolds) filed in this court a petition for writ of prohibition following the entry of an order by the Clark County Circuit Court denying its motion to dismiss the complaint of its former employee, respondent Billy C. Kirksey. Under the exclusive-remedy doctrine provided under the Arkansas Workers’ Compensation Act, Reynolds contends that the circuit court lacks jurisdiction over the common-law tort claims Kirksey has asserted against it. We grant the writ of prohibition for the reasons explained below.
The record reflects that Kirksey was employed at Reynolds’s aluminum-processing plant near Arkadelphia from 1957 to 1989. On December 17, 2009, Kirksey filed an occupational-disease claim for benefits before the Arkansas Workers’ Compensation Commission (Commission), alleging that he “was exposed to asbestos while on the job |2causing cancer.” The parties submitted the matter to the administrative law judge based on the following stipulations; that Kirksey’s employment ended on August 3, 1989; that Kirksey’s last injurious exposure to asbestos would have occurred prior to that date; and that Kirksey was diagnosed with bladder cancer on July 1, 2004. The law judge applied the statute of limitations pertinent to as bestosis and found that Kirksey’s claim was time-barred. See Ark.Code Ann. § ll-9-601(g)(l)(B) (Repl.2012); Ark.Code Ann. § ll-9-702(a)(2)(B) (Repl.2012).
Kirksey did not appeal the law judge’s decision to the full Commission. Instead, he filed suit against Reynolds in circuit court. In his complaint, Kirksey alleged that, during his employment with Reynolds, he “was exposed to and did inhale coal tar pitch, coal tar volatiles, and polycyclic aromatic hydrocarbons (PAHs),” which caused his bladder cancer and his disability. Based on this factual predicate, he asserted claims for negligence; strict liability; breach of implied warranty; gross, willful, and wanton conduct; fraud; and unjust enrichment. In response, Reynolds filed a motion to dismiss the complaint in reliance on the exclusive remedy afforded by Arkansas Code Annotated section 11-9-105 (Repl.2012) of the Workers’ Compensation Act. Kirksey replied that his occupational disease was not covered under the Act; thus, he was free to seek common-law remedies in circuit court. After a hearing, the circuit court accepted Kirksey’s argument and denied Reynolds’s motion to dismiss. The |scourt ruled that the Act covers only claims for occupational disease that occur within the statute of limitations and that, where a plaintiffs injury or disease manifests after the statute of limitations has expired, a circuit court has the authority to exercise jurisdiction over the plaintiffs claims. Reynolds has now pursued a writ of prohibition in this court. We took the petition as a case and ordered the parties to brief the issues.
In support of the petition, Reynolds argues that the circuit court is wholly without jurisdiction to consider Kirksey’s claims because of the exclusive remedy provided by the Workers’ Compensation Act. Reynolds asserts that occupational diseases are covered by workers’ compensation and that the expiration of the statute of limitations does not take an occupational disease outside the scope of the Act. Kirksey responds that his bladder cancer does not come within the purview of workers’ compensation because the Act does not cover diseases that manifest beyond the one-year period following the last injurious exposure. We must grant the writ, but not for the reason argued by Reynolds.
A writ of prohibition is extraordinary relief that is appropriate only when the trial court is wholly without jurisdiction. White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Parker v. Crow, 2010 Ark. 371, 368 S.W.3d 902. Prohibition is a proper remedy when the jurisdiction of the trial court depends on a legal rather than a factual question. Porocel Corp. v. Cir. Ct. of Saline Cnty., 2013 Ark. 172, 2013 WL 1776648. Prohibition is never issued to prohibit a trial court from erroneously exercising jurisdiction. Int’l Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008).
|4Beginning with the decision in VanWagoner v. Beverly Enterprises, 334 Ark. 12, 16, 970 S.W.2d 810, 812 (1998), this court has consistently followed the rule that the Arkansas Workers’ Compensation Commission “has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.” See, e.g., Int’l Paper Co., supra; Erin, Inc. v. White Cnty. Cir. Ct., 369 Ark. 265, 253 S.W.3d 444 (2007); Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006); Moses v. Hanna’s Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006); Stocks v. Affiliated Foods Sw., Inc., 363 Ark. 235, 213 S.W.3d 3 (2005); Merez v. Squire Court Ltd. P’ship, 353 Ark. 174, 114 S.W.3d 184 (2003); WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000) (per curiam). Thus, when a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Workers’ Compensation Act, the Commission must first decide the issue. Miller v. Enders, 2010 Ark. 92, 2010 WL 682268; McCarthy v. Pulaski Cnty. Cir. Ct., 366 Ark. 316, 235 S.W.3d 497 (2006). In adopting this rule, we have explained that the Commission has vast expertise in this area and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Workers’ Compensation Act. Carter v. Ga.-Pac. Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006) (citing Johnson v. Union Pac. R.R., 352 Ark. 534, 541, 104 S.W.3d 745, 748 (2003)).
A review of the record in this ease reveals that Kirksey filed a claim before the Commission asserting that he “was exposed to asbestos while on the job causing cancer.” In his complaint in circuit court, he alleged that his bladder cancer was caused by exposure to |s“coai tar pitch, coal tar pitch volatiles, and polycyclic aromatic hydrocarbons (PAHs).” Obviously, the claim presented in the circuit court is not the same one that was adjudicated before the law judge, who decided a claim based on asbestos exposure, not exposure to coal tar pitch. This variance is critical, primarily because the limitations periods for occupational diseases are different, depending on the type of exposure. In the asbestos claim actually presented to the Commission, the law judge applied the limitations period for claims based on asbestosis pursuant to Arkansas Code Annotated sections 11 — 9— 601(g)(1)(B) and ll-9-702(a)(2)(B). On the other hand, the limitations period for an occupational disease caused by exposure to coal tar pitch is governed by Arkansas Code Annotated section 11 — 9— 601(g)(1)(B) in conjunction with Arkansas Code Annotated section ll-9-702(a)(2)(A). The question before this court is whether coverage is afforded by the Act, and this question is tied to the issue of whether the statute of limitations has run. Whether a statute of limitations has expired is a question of fact for the Commission to resolve. See Houston Contracting Co. v. Young, 267 Ark. 322, 590 S.W.2d 653 (1979). In this case, the Commission has yet to determine whether a claim for occupational disease based on exposure to coal tar pitch is covered by the Act. Based on |fithe well-established rule of exclusive jurisdiction, any claim for occupational disease as a result of exposure to this substance must first be presented to and decided by the Commission.
In addition, this is not a case where the facts are so one-sided that the issue can be determined as a matter of law because an essential fact is missing from the record. This court has held that, in silicosis and asbestos cases, the statute of limitations begins to run at the time of disablement, not at the time the claimant learns that he is suffering from the disease. See Porocel, supra; Ark. Coal Co. v. Steele, 237 Ark. 727, 730, 375 S.W.2d 673, 675 (1964); Rannals v. Smokeless Coal Co., 229 Ark. 919, 921, 319 S.W.2d 218, 220 (1959). Under Arkansas Code Annotated section 11-9-601(g)(1)(B), the same is true for other occupational diseases. While the parties’ stipulations included the date of Kirksey’s last exposure and the date he was diagnosed with bladder cancer, the record does not disclose the time of Kirksey’s disablement. This fact must be in evidence before there can be a determination of whether Kirksey’s claim was timely.
In conclusion, Kirksey has submitted no claim to the Commission for an occupational disease resulting from exposure to coal tar pitch. Our case law dictates that the Commission has exclusive jurisdiction to decide this issue in the first instance. This court has stated a number of times that when encroachment on the jurisdiction of the Workers’ Compensation Commission is clear, a writ of prohibition is clearly warranted. Porocel, supra; Int’l Paper Co., supra; Erin, Inc., supra; W. Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). Because Kirksey’s claim has not been submitted to the Commission, the circuit court lacked jurisdiction to decide this case. Miller, supra. Remaining true to the law, we issue the writ of prohibition with leave for the parties to pursue a determination before the Commission. See id.
Petition for writ of prohibition granted.
BAKER and HART, JJ., dissent.
. In addition to Reynolds, Kirksey also sued Koppers, Inc.; Beazer East, Inc.; Beazer USA, Inc.; Beazer, PLC; Union Carbide Corp.; Allied Chemical Corp.; Ashland Chemical; Columbia Carbon; U.S. Steel; Darragh Corp.; and John Does 1-10.
. In accordance with the statutes, two requirements must be met in order to recover: (1) the time of disablement must have occurred within three years from the date of the last injurious exposure, and (2) the claim for compensation must be filed within one year after the time of disablement.
. Under these statutes, the two requirements for recovery are (1) the time of disablement must have occurred within one year of the last injurious exposure, and (2) the claim for compensation must be filed within two years from the date of the last injurious exposure.
. We note that the law judge determined that the asbestos claim was time-barred without making a finding concerning the date of disablement. This case comes to us on a writ of prohibition from the circuit court. The propriety of the law judge’s decision is not before us. | [
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COURTNEY HUDSON GOODSON, Associate Justice.
| ,This litigation concerns competing interests in oil-and-gas rights. Appellants Arlie and Zelda Walls and Jonathan and Ayesha Hernandez de la Lama appeal the order entered by the Circuit Court of Van Burén County granting summary judgment in favor of appellees New Century Production Company, LLC (New Century); Paraelifta Land and Minerals Limited Partnership (Paraelifta); James A. Claughton; and Southwestern Energy Production Company (SEECO). For reversal, appellants contend that the circuit court erred in concluding as a matter of law that appellees were bona fide purchasers for value without notice of appellants’ superior claim to the oil-and-gas rights in question. They also assert error in the circuit | {.court’s award of attorneys’ fees to appellees. We reverse and remand.
Factual Background
In February 1999, appellants Jonathan and Ayesha Hernandez de la Lama (collectively Hernandez), who are residents of Mexico, entered into a real-estate sales contract to buy 100 acres of land located in Van Burén County from Noble and Elsie Humphries (collectively Humphries). The transaction also included the purchase of two tractors and other equipment. By agreement of the parties, Humphries retained the right to use the tractors and equipment until Hernandez paid for the property in full. It is undisputed that the sales contract was not filed of record.
The sales contract included the mineral rights to the property. Nonetheless, in January 2004, Humphries leased the oil- and-gas rights to New Century, which in turn assigned the rights to SEECO. In December 2004, Humphries sold the oil- and-gas rights to Paraelifta and Claughton. In October 2008, Hernandez entered into a contract for the sale of the property to appellants Arlie and Zelda Walls (collectively Walls). That same month, Hum-phries executed a warranty deed of the property to Hernandez.
In February 2009, appellants Hernandez and Walls filed suit against appellees New Century, SEECO, Paraelifta, and Claugh-ton. In their complaint, they alleged that appellees |3were not innocent purchasers of the oil-and-gas rights, and they sought cancellation of the lease issued to New Century and the assignment to SEECO, as well as the deed conveying the rights to Paraelifta and Claughton. Subsequently, appellants filed a motion for summary judgment. In their brief, appellants acknowledged the general rule that an instrument in writing affecting real property is not valid against a subsequent purchaser unless it is filed of record in the county where the real estate is located. However, they argued that Hernandez was in possession of the property when the lease and the deed were executed and that his possession provided sufficient notice of a claim or interest in the property.
As proof of possession, appellants submitted the deposition testimony of Jonathan Hernandez. Mr. Hernandez testified that he initially visited the property five or six times a year and that his family spent a couple of Christmases at the ranch. He said that different members of his family visited on other occasions, particularly his uncle and his mother, who he said spent a great deal of time there. Mr. Hernandez testified that he sold hay and raised horses, chickens, and calves on the ranch and that caretakers lived on the property in his absence. He said that he erected a sign near the road bearing the name “Rancho La Providencia” in honor of his great-grandmother’s hacienda in Mexico. Mr. Hernandez stated that this name was also painted on the barn and stenciled onto a tractor. He said that he kept a truck on the property that had a license plate from Chihuahua, Mexico; that he paid for the utilities and insurance; that he reimbursed Humphries for the property taxes; and 14that he bought agricultural supplies for the ranch from a local store. Mr. Hernandez testified that “it was common knowledge that we lived” on the ranch. He denied that Humphries cared for the property after the sale, and he said that Hum-phries had permission to use the tractors for his own purposes but that the agreement did not include performing any work on the ranch.
Appellees responded to appellants’ motion for summary judgment and also filed summary-judgment motions of their own. Collectively, they took the position that they were bona fide purchasers without notice of Hernandez’s interest in the property. They maintained that subsequent purchasers are entitled to the protection of the recording statute unless there is actual notice of an unrecorded interest. Appel-lees argued that physical possession alone is not sufficient to impart actual notice or to override the Arkansas real-estate recording system. Alternatively, appellees asserted that Hernandez’s possession of the property was not exclusive because Hernandez did not reside at the ranch and because Humphries retained the right to enter the property to use the equipment. In support of their arguments, appellees presented the affidavit of Michael English, the project coordinator of New Century. He stated that New Century acts as a leasing agent for SEECO and that during the lease negotiations no one informed New Century of Hernandez’s interest in the property. English also averred that title to the property was confirmed by examining the real-estate records in the county and that no representatives of New Century or SEECO viewed the property in advance of obtaining the lease. Jim Williams, an employee of Paraclifta, stated in an affidavit that he searched the land records of Van Burén County and | Bthat he was never placed on either actual or constructive notice of appellants’ claim to the mineral interests in the property.
Judge Stephen Choate, sitting as special judge for the circuit court, heard the cross-motions for summary judgment. Following the hearing, he denied the parties’ motions, finding that questions of material fact remained for trial. Thereafter, appel-lees renewed their motions for summary judgment, essentially raising the same arguments as before. After a hearing, the circuit court granted appellees’ motions for summary judgment, ruling that no fact-questions remained and that appellees were entitled to judgment as a matter of law. Appellees subsequently filed motions for attorneys’ fees pursuant to Arkansas Code Annotated section 16-22-808 (Repl. 1999). Over appellants’ objections, the circuit court granted appellees’ request for fees. The court awarded $12,000 to the attorney representing New Century and SEECO and $12,000 to the attorney for Paraclifta and Claughton. Appellants filed timely notices of appeal from the circuit court’s orders.
Initially, this case was heard by the court of appeals, which affirmed the circuit court’s order of summary judgment but reversed the awards of attorneys’ fees. Walls v. Humphries, 2012 Ark. App. 4, 2012 WL 11458. Thereafter, this court accepted the appellants’ petition for review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Sullivan v. Coney, 2013 Ark. 222, 427 S.W.3d 682.
Bona Fide Purchasers for Value
On appeal, appellants first argue that the circuit court erred in concluding that appellees were entitled to judgment as a matter of law. They contend that Hernandez’s | r,possession of the property imparted actual knowledge of his interest such that appellees were not bona fide purchasers of the oil-and-gas rights. In response, ap-pellees assert that they are innocent purchasers and that Hernandez’s possession did not provide actual notice because they were unaware of his possession of the property.
In this case, the circuit court granted appellees’ motions for summary judgment. Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. 40 Retail Corp. v. City of Clarksville, 2012 Ark. 422, 424 S.W.3d 823. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark.
328, 422 S.W.3d 116. We view 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. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701.
We begin by referencing our recording statute that is found at Arkansas Code Annotated section 14-15-404 (Supp.2011). It provides in relevant part,
(b) No deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, made or executed after December 21, 1846, shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof or against any creditor of the person executing such an instrument obtaining a judgment or decree which by law may be a lien upon the real estate unless the deed, bond, or instrument, duly |7executed and acknowledged or proved as required by law, is filed for record in the office of the clerk and ex officio recorder of the county where the real estate is situated.
The General Assembly enacted this statute in 1846, and subsection (b) has survived without amendment since that time.
Generally, an instrument in writing that affects real property shall not be valid against a subsequent purchaser unless it is filed of record in the county where the real estate is located. Wetzel v. Mortg. Elec. Registration Sys., Inc., 2010 Ark. 242, 2010 WL 2025115. However, in order to be a bona fide purchaser of land in Arkansas, one must take property in good faith, for valuable consideration, and without notice of a prior interest. Bill’s Printing, Inc. v. Carder, 357 Ark. 242, 161 S.W.3d 803 (2004); Wilkins v. Jernigan, 195 Ark. 546, 113 S.W.2d 108 (1938). A subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Killam v. Tex. Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990); Bowen v. Perryman, 256 Ark. 174, 506 S.W.2d 543 (1974). Whatever is notice enough to excite attention, put a party on guard, and call for inquiry is notice of everything to which the inquiry might lead, and whenever one has sufficient information to lead him to a fact he shall be deemed conversant with it. Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W.2d 30 (1949); Millman Lumber Co. v. Bryant, 213 Ark. 277, 209 S.W.2d 878 (1948). Clearly, the “actual notice” exception to the protection afforded by section 14-15-404 was intended to cover situations in which a property interest does not appear in the | «records. Massey v. Wynne, 302 Ark. 589, 592, 791 S.W.2d 368, 370 (1990).
As part of this exception, this court has long recognized that possession of property by someone other than the record owner is the equivalent of actual notice of the title, rights, or equities of the possessor. Midland Sav. & Loan Co. v. Brooks, 177 Ark. 470, 6 S.W.2d 828 (1928); Naill v. Kirby, 162 Ark. 140, 257 S.W. 735 (1924); Barrett v. Durbin, 106 Ark. 332, 153 S.W. 265 (1913); Atkinson v. Ward, 47 Ark. 533, 2 S.W. 77 (1886); Sisk v. Almon, 34 Ark. 391 (1879); Hamilton v. Fowlkes, 16 Ark. 340 (1855). In American Building & Loan Association v. Warren, 101 Ark. 163, 169, 141 S.W. 765, 767 (1911), we observed,
Ordinarily, possession by a person under a contract of purchase, although unrecorded, is notice of his equitable rights and interests in the property. Actual possession is evidence of some title in the possessor, and puts the subsequent purchaser or mortgagee on notice as to the title which the occupant holds or claims in the property. Generally, actual, visible, and exclusive possession is notice to the world of the title and interest of the possessor in the property, and it is incumbent upon the subsequent purchaser or mortgagee to make diligent inquiry to learn the nature of the interest and claim of such possessor, and if he does not do so, notice thereof will be imputed to him. Hamilton v. Fowlkes, 16 Ark. 340; Shinn v. Taylor, 28 Ark. 523 [ (1873) ]; Rockafellow v. Oliver, 41 Ark. 169 [ (1883) ]; Atkinson v. Ward, 47 Ark. 533, 2 S.W. 77; Strauss v. White, 66 Ark. 167, 51 S.W. 64; Thalheimer v. Lockard [Lockert ], 76 Ark. 25, 88 S.W. 591 [ (1905) ]; Sproull v. Miles, 82 Ark. 455, 102 S.W. 204 [(1907)]; Hughes Bros. v. Redus, 90 Ark. 149, 118 S.W. 414 [ (1909) ]; 1 Jones on Mortgages (6th Ed.) § 589.
See also Clinton Special Sch. Dist. No. 1 of Van Buren Cnty. v. Henley, 212 Ark. 643, 645, 207 S.W.2d 713, 714 (1948) (stating that “actual possession of real estate is notice to the world of the claim or interest of the one in possession, regardless of whether such claimant has on record a written interest creating an interest or title”). This court has even commented that possession of property provides sufficient notice as to relieve the possessor of the necessity for filing under the recording statute in order to protect against a subsequent purchaser. Strauss v. White, 66 Ark. 167, 51 S.W. 64 (1899). This doctrine rests on the premise that possession of a third person is said to put a subsequent purchaser upon an inquiry, and such a purchaser is charged with notice of all that he might have learned by a due and reasonable inquiry of the occupant with respect to every ground, source, and right of his possession. First Nat’l Bank v. Gray, 168 Ark. 12, 268 S.W. 616 (1925). By 1931, we considered this rule of law to be so well settled that there was hardly a need for citation to authority. Scott v. Carnes, 183 Ark. 650, 37 S.W.2d 876 (1931).
Even so, appellees contend that the rule does not apply unless the subsequent purchaser has actual knowledge that a third person is in possession of the property. Thus, they assert that the rule does not inure to appellants’ benefit here because they did not inspect the property, and thus, did not actually know of Hernandez’s possession. However, we rejected this precise argument in 1855 with our decision in Hamilton v. Fowlkes, supra. After surveying a number of cases from other jurisdictions, we quoted with approval the following passage from the Supreme Court of Alabama’s opinion in Scroggins v. McDougald, 8 Ala. 382 (1845):
The admissions of the counsel for McDougald, as well as the evidence, & c, establish that the complainant and Bagly, under whom she claims, had the actual possession of the lot at the time when McLean assigned the certificate of the commissioners to McDougald, by means of which he subsequently obtained the title. The only question, therefore, in this aspect of the case, is whether the possession so held was a sufficient matter to put the defendant, McDougald, on inquiry as to the title of the occupants, and thus affect him with notice, although in point of fact, he had no information that the possession was thus held. It is laid down very generally in the books, that whatever is sufficient to put the purchaser upon inquiry, is good constructive notice. Atk. on Mark. Titles, 573; 2 Sug. on Vend. 290. It is difficult to conceive what circumstance can be more strong to induce inquiry, than the fact that the vendor is out of possession and another is in. Accordingly it has been held, that information to |ina purchaser, that a tenant was in possession, is also notice of his interest. 13 Vesey 120. And if any part of the estate purchased is in the occupation of a tenant, it is considered full notice of the nature and extent of his interest. Atk. on Mark. Titles, 574. In the American courts, the rule is very generally recognized, that if a vendee is in possession of lands, a subsequent purchaser or mortgagee has constructive notice of his equitable right. 1 Monroe 201, 4 Litt. 317; 5 John. Chan. 29; 2 Paige 300; 3 ib. 421. As the complainant in this case was in the occupancy of the land at the time when McDougald acquired it by purchase or transfer from McLean, it is immaterial whether knowledge of the occupancy can be traced to him, because the law casts on him the duty of ascertaining how that fact is. If a different rule is admitted, a purchaser residing at a distance from the land, would rarely be charged with notice on this account.
Hamilton, 16 Ark. at 374-75 (emphasis supplied). In Hamilton, this court concluded that it is not unreasonable to expect a purchaser to inquire whether his vendor or another person is in possession of land that he is about to purchase, and because a third person was in actual possession of the property, we held that the subsequent purchaser was not an innocent purchaser for value. In Moore v. Oates, 143 Ark. 328, 220 S.W. 657 (1920), we also noted that a subsequent purchaser is bound to take notice of another’s possession whether or not he actually knows of the occupan cy. Thus, our law is clear that a subsequent purchaser is charged with notice when the land is in possession of someone other than the record owner, even though the subsequent purchaser may not be aware of the third person’s possession. Accordingly, appellees’ contention based on their lack of actual knowledge of Hernandez’s possession is without merit.
Alternatively, appellees argue that Hernandez’s possession of the property was not exclusive and thus did not impute notice of his interest. They point out that Hernandez did not reside on the property and that Humphries retained the right to enter the property to use the equipment.
_LyIt is true that the possession of land that will impart notice of title must be adverse, exclusive, unequivocal, and inconsistent with the claim of any other person. Scott, supra. Where possession is not exclusive but is in connection with the occupancy of another who sustains the relation of parent or who is the owner of the record title, the possession of others will be referable to the possession of the parent or owner of record title and is not such as would require the purchaser to make inquiry as to the nature of their possession or any hidden equities that might exist in their favor. Story v. Grayson, 208 Ark. 1029, 185 S.W.2d 287 (1945); Rubel v. Parker, 107 Ark. 314, 155 S.W. 114 (1913). However, this court has said that actual occupancy is not necessary in all cases for possession to be considered exclusive. Story, supra. When the evidence is viewed in the light most favorable to appellants, we are not convinced that appel-lees are entitled to judgment as a matter of law. Through the deposition testimony of Mr. Hernandez, appellants presented evidence tending to demonstrate Hernandez’s actual and exclusive possession of the property. Summary judgment is not proper where the evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817. Also, the object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). On this record, we hold that a question of fact remains as to whether Hernandez was in exclusive possession of the property. Therefore, we reverse the order of summary judgment and remand for proceedings consistent with this opinion.
112Attorneys’ Fees
For their second point on appeal, appellants argue that the circuit court erred in awarding attorneys’ fees to appellees in this action. They contend that fees are not authorized in this case under section 16-22-308 because the purpose of the litigation was to determine which parties had superior title to the oil-and-gas rights. In support of the circuit court’s decision, ap-pellees assert that fees are allowed under the statute because appellants’ request for the cancellation of the lease, assignment, and deed arose out of their claim for breach of contract against Humphries.
Arkansas Code Annotated section 16-22-308 permits an award of fees to a prevailing party in certain types of civil actions and provides as follows:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
(Emphasis supplied.) A decision to grant or deny a motion for attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321.
Ordinarily, our reversal of the order of summary judgment would mandate a reversal of the fee award without a discussion of the merits of the issue because appellees are no longer the prevailing parties. See Riceland Foods, Inc. v. Pearson, 2009 Ark. 520, 357 S.W.3d 434. However, we choose in this instance to address the issue because the question could arise on remand. Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467 (while reversing on one | ispoint, the court chose to address other issues raised on appeal that were likely to recur on retrial). Relevant to our decision is the case of Hanners v. Giant Oil Co. of Arkansas, Inc., 373 Ark. 418, 284 S.W.3d 468 (2008). There, a declaratory-judgment action was filed for a determination of the rights, status, and legal relations of the parties in connection with a lease. We held that fees were not allowed under the statute because the underlying dispute did not involve a claim for breach of the lease agreement. Also, in Sunbelt Exploration Co. v. Stephens Production Co., 320 Ark. 298, 896 S.W.2d 867 (1995), we affirmed an award of fees where the litigation involved a claim to cancel a lease based on a breach of the terms of the lease.
At issue in the present case is whether appellees were innocent purchasers of the property. Although appellants sought cancellation of the lease, assignment, and deed, the litigation between the parties does not concern a breach of these agreements. Therefore, fees are not allowed under the statute. Accordingly, the circuit court abused its discretion in awarding attorneys’ fees, and we reverse the court’s orders granting appellees’ request for fees.
Reversed and remanded; court of appeals’ opinion vacated.
Special Justices SUZANNE G. CLARK, HAROLD J. EVANS, and LANCE LEE join in this opinion.
DANIELSON, BAKER, and HOOFMAN, JJ., not participating.
. In his deposition, Noble Humphries stated that he owned other property in the county and did not realize that the lease and deed of the oil-and-gas rights covered the property under contract of sale to Hernandez.
. Appellants also filed suit against Hum-phries, alleging breach of contract, breach of fiduciary duty, and breach of warranty of title. Appellees also filed cross-claims against Humphries. The appellants and the appellees later moved to dismiss their claims against Humphries, and the circuit court entered an order dismissing without prejudice all claims against Humphries. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
| Appellant Arbury Charles Bowerman, by and through his attorney, David L. Moore, has filed a motion for rule on clerk. On October 26, 2012, the circuit court entered a judgment and commitment order. Bowerman timely filed a notice of appeal on November 21, 2012. Pursuant to Arkansas Rule Appellate Procedure-Criminal 4(b) (2012), Bowerman’s record was due by February 20, 2013. On January 24, 2013, Bowerman filed a motion for extension of time to file the record in the circuit court; however the circuit court’s order granting the motion was not filed until March 8, 2013, after the record’s due date. Bower-man’s record is therefore untimely.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There, we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
12Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from the motion and record before us that there was error on Mr. Moore’s part in failing to obtain an extension before February 20, 2013. Pursuant to McDonald, supra, we grant Bower-man’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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ROBERT J. GLADWIN, Chief Judge.
11 In separate briefs, appellants, Shannon Madison and Gary Knuckles, contend that the Craighead County Circuit Court erred in terminating their parental rights because the evidence was insufficient to prove that termination was in the best interest of the children. Knuckles also argues that he was not provided the requisite services by the Arkansas Department of Human Services (DHS). We affirm.
The five children involved in- this case were born to Madison — CM (12/17/98); DM (11/29/00); MM (7/21/03); SM (9/17/04); and CK (1/19/06). Knuckles is the biological father of CK, and Dennis Madison is the biological father of the remaining four. DHS filed a petition for emergency custody of all five children on June 24, 2010, alleging in an attached ^affidavit that on June 21, 2010, Madison was riding in the car with her mother, who was driving, and the car was stopped by police. The five children were in the car and were not wearing seat belts. Madison was found to be hiding crystal methamphetamine under the seats, and both she and her mother were arrested. The children were described as having body odors and not dressed or groomed well — three did not have on shoes. Madison was charged with possession of crystal methamphetamine with intent to sell, and her mother was charged with possession of marijuana. Madison tested positive for crystal methamphetamine. Knuckles, who was not in the car at the time, refused to submit to a drug test. The affidavit fur ther alleged that there was a true finding that Knuckles had committed sexual abuse in a separate county according to CHRIS, a database used by DHS. It further stated that there was a pending sex-abuse allegation that a fifteen-year-old relative of the family, who lives on their property, abused two of the children, CK and SM. The petition sought a declaration that the children were dependent-neglected and should be removed from parental custody. An order was signed on June 24, 2010, granting custody of the five children to DHS.
After an adjudication of dependency-neglect and three further review hearings, a permanency-planning order was filed on December 13, 2011, reflecting a June 15, 2011 hearing. The circuit court found that it was in the children’s best interest that the goal of the case continue to be reunification because Madison had been complying with the case plan and court orders and had made significant measurable progress. The children had been on a trial placement with Madison since May 10, 2011, and the circuit court found that the placement had been successful to that point. Knuckles had complied with the case plan and court orders by being available for a random home visit and by submitting to random drug | -¡screens during visitation, which were negative. However, the circuit court found that Knuckles did not comply by refusing to submit to a random drug screen on May 31, 2011, which was deemed positive. The parents were ordered to continue complying with the previous orders.
A petition for termination of parental rights was filed on December 12, 2011, alleging that termination of parental rights was in the best interest of the children, taking into consideration the likelihood of adoption and the potential harm caused by returning them to their mother’s custody. The petition made the same allegations as those made m the affidavit attached to the original petition for emergency custody and added that Madison had cooperated for a while and a trial placement began with her on May 10, 2011. However, that placement was disrupted due to Madison’s noncompliance because she failed to maintain contact with DHS.
The petition alleged that Madison allowed Knuckles to live in the home with her and the children. DHS lost contact with Madison on June 28, 2011, and Knuckles did not maintain contact with DHS. During this time, Madison did not continue the children in counseling as ordered. DHS located the children on August 24, 2011. The petition further alleged that neither parent had obtained stable housing or employment and the children had been outside the home for more than twelve months. The petition also alleged that other factors arose after the original petition was filed, and those factors demonstrated that returning the children to their parents would be contrary to their health, safety, and welfare, and that the parents manifested an indifference or incapacity to remedy the subsequent |4issues. Those issues were identified as the disrupted trial placement and Knuckles’s living in the home with Madison and her children.
A fifteen-month review hearing was held on February 10, 2012, with an order filed February 21, 2012. The circuit court found that returning the children to Madison’s custody was contrary to their welfare, and that it was in their best interest to remain in DHS custody. The goal of the case was changed to adoption. The circuit court found that Madison and Knuckles had not complied with the case plan because Knuckles had not established paternity, had not complied with the recommendations of the drug-and-alcohol assessment, had not maintained contact with DHS, and had not provided proof of income or employment. Madison had not maintained contact with DHS, had not provided proof of employment or income, and had not maintained stable housing.
A termination hearing was held on June 7, 2012, and the circuit court terminated parental rights by order filed October 25, 2012, finding specifically that it was in the children’s best interest, taking into consideration the likelihood that they would be adopted and the potential harm to their health and safety if returned to their parents. The circuit court found that the conditions which caused removal had not been remedied as follows:
[Both] have failed to comply with the case plan and orders of the Court. When the juveniles were removed, Gary Knuckles also lived in the home. There is a true finding of sexual abuse, specifically sexual contact, against Gary Knuckles with the victim being his older daughter. Also at the time of removal there was a pending sexual abuse allegation that the mother’s brother sexually abused two of the juveniles, specifically CK and SM, and that report has since been found true. The Court adjudicated the juveniles dependent-neglected on 8/24/10 based on parental unfitness due to the mother’s arrest and positive test for methamphetamine. The arrest arose during a traffic stop where the mother was observed hiding methamphetamine under the car seat. All five children were in the car. Gary Knuckles refused a drug test at the time of removal. The Court also found neglect based on the children being in |5the car during the arrest and all were inappropriately dressed and none were wearing seat belts. The mother did comply enough that the Court allowed a trial home placement on 5/10/11, however, that trial placement disrupted due to the mother not maintaining contact with the [DHS], and the mother allowing Gary Knuckles to live in the home with the children. [DHS] had contact with the mother on 6/28/10, and then neither Gary Knuckles or Shannon Madison had contact with [DHS]. The FSW attempted to make contact at the last known address on 5/31/11, 6/7/11, 6/22/11, and 7/11/11. The mother also did not maintain therapy for the children. The family could not be located until 8/24/11. The mother and Gary Knuckles continued to be together during and after the disrupted trial placement. Neither has maintained stable employment or housing. The housing situation is the same as when the children were removed. Mr. Knuckles has failed to comply with treatment.
The Court finds the testimony of Terri Blanchard to be credible and Shannon Madison and Gary Knuckles failure to comply with the case plan, and to show some basic level of stability demonstrate how the juveniles would be at risk of potential harm if returned to [them].
From this order terminating their parental rights, both Madison and Knuckles timely appeal.
Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543, 2010 WL 2612681. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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 resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Termination of parental rights |fiis an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007).
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) 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. Ark.Code Ann. § 9-27-341 (b)(3)(A)(i) & (ii) (Supp.2011). Additionally, the trial court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(B). One statutory ground as set forth in the statute is that the child has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve months, and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Ark.Code Ann. § 9-27-341 (b)(3)(B)(i)(a). Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
Madison argues that the circuit court erred in finding that termination of her parental rights was in the children’s best interest. Knuckles’s argument is similar to Madison’s, but it is applicable only to his biological child, CK. He contends that because the law favors preservation, not severance, of natural familial bonds, Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006), he should not have his parental rights terminated simply because he has not “jumped through every hoop that DHS placed in front of him.” He reiterates that he is not seeking custody of CK but to maintain his familial connection through visitation. Knuckles also argues that DHS did not provide services to him, as it was recommended by his drug-and-alcohol assessment that he obtain outpatient drug treatment, and DHS refused to help with that expense.
We agree with DHS and the attorney ad litem that the circuit court’s order terminating parental rights was not clearly erroneous. During the twenty-four months that the case was open, a trial placement with Madison took place, but Madison failed to follow the circuit court’s order. Knuckles, who had a true finding of a sexual offense against his minor daughter and was a convicted felon for trading pseu-doephedrine for methamphetamine, tested positive for taking illegal drugs during the pendency of the case.
In addressing Madison’s and Knuckles’s only challenge — the circuit court’s best-interest findings — two factors must be considered: (1) the likelihood that the children will be adopted if termination is granted, and (2) the potential harm caused by continuing contact with the parents. Ark.Code Ann. § 9-27-341(b)(3)(A).
First, the circuit court found that the children were adoptable based on the evidence provided by Terri Blanchard, the foster-care supervisor, who testified that the children were adoptable. A caseworker’s testimony that children are adoptable is sufficient to support an adoptability finding. Cobbs v. Ark. Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004).
IsSecond, the circuit court’s finding that the children would suffer potential harm from continued contact with the parents does not leave this court with a definite and firm conviction that a mistake was made. Neither parent was ready for custody of these five children after two years, as Knuckles wanted only visitation to continue and Madison sought in her appellate brief more time and the continuation of reunification services. On appeal, the appellate court does not substitute its own judgment or second guess the credibility determination of the circuit court; we will reverse in those cases only where a definite mistake has occurred. KC. v. Ark. Dep’t of Human Servs., 2010 Ark. App. 353, 374 S.W.3d 884.
DHS and the attorney ad litem note that Knuckles’s argument that DHS did not provide him with adequate services is not a best-interest argument, and it does not make sense in light of his assertion during the termination-of-parental-rights hearing that he had spent $10,000 on attorney’s fees. Also, they contend that, even if they had paid for his therapy, it would not have erased his sexual-abuse finding or the fact that he was a felon who traded pseu-doephedrine for methamphetamine. We agree.
Affirmed.
HIXSON and BROWN, JJ., agree.
. Dennis Madison's parental rights are addressed in a separate termination case filed by DHS. | [
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KENNETH S. HIXSON, Judge.
| |This case involves the construction of an apartment complex that caused drainage damage to a homeowner’s adjacent property. The appellees are R.M. Pangle and Lois K. Pangle, who have lived in their house in Mountain Home since 1974. The appellant is Valley Estates, Limited Partnership. Valley Estates completed construction of the apartments at issue in late 2007. Valley Estates appeals from a judgment in favor of the Pangles, wherein the trial court found that Valley Estates created a nuisance and. awarded the' Pangles $7087.50 in compensatory damages and $10,000 in punitive damages. Valley Estates’ primary argument on appeal is that the Pangles’ action was barred by the applicable statute of limitations. We agree, and we reverse and dismiss.
The Pangles initiated this case on June 4, 2012, when they filed a complaint against Valley Estates of Mountain Home Phase II, Limited Partnership, alleging that the ^construction of the apartment complex caused drainage damage to the Pangles’ adjacent property. The Pangles amended their complaint on August 21, 2012, substituting Valley Estates, Limited Partnership as the proper defendant. The Pangles filed a second amended complaint on March 5, 2013, asserting that the con struction of the apartment created a nuisance and changed the slope of the terrain, resulting in damage to the Pangles’ gravel driveway “every time it rains.” The Pan-gles claimed that their driveway had been damaged more than eighty-seven times since June 2009 by rainfalls of one-half inch or more, and that every time the driveway was damaged the Pangles were forced to repair the driveway at their own expense.
In defending against the Pangles’ lawsuit, Valley Estates asserted that the Pan-gles’ claims were barred by the three-year statute of limitations. Valley Estates argued that the Pangles were asserting a permanent nuisance, as opposed to a temporary nuisance, and that the Pangles’ cause of action arose upon completion of the construction project in late 2007. Because the Pangles filed their original complaint more than three years later on June 4, 2012, Valley Estates contended that the action was time-barred.
Mr. Pangle testified at the bench trial. He stated that on three occasions during construction of the apartment complex he spoke with supervisors of Valley Estates expressing his concerns about the change in the slope of the terrain. According to Mr. Pangle, the supervisors promised that they would fix the slope but it never happened. Mr. Pangle also stated that, when the apartments were built, Valley Estates installed twenty-one downspouts that drain onto his driveway. Mr. Pangle testified that the project engineer for Valley Estates l-jhad promised to take measures to alleviate the drainage problem, but that Valley Estates made no attempt to divert the water.
Mr. Pangle testified that any time it rained any amount, the water would flow from the apartments and wash out his driveway. Mr. Pkngle stated that each time his driveway was damaged, he would repair it by rebuilding and grading it with his tractor. Mr. Pangle stated that the drainage issues were probably the worst thing that had ever happened to him, and that the damage occurred with such frequency that his quality of life was adversely affected from losing sleep. He said that he had to repair his driveway just a week before trial.
Ben Strider, an engineer, visually inspected the parties’ properties. Mr. Strider testified that the apartment construction plans were not completed properly because there was no ditch behind one of the buildings to prevent water from flowing onto the Pangles’ land. Mr. Strider further stated that the drainage problems were exacerbated by downspouts off of the back of the apartment buildings, which are aimed at the Pangles’ property without the benefit of an underground drain. Mr. Strider stated that, as a result of these construction issues, damaging water flowed onto the Pangles’ driveway.
In the trial court’s judgment awarding compensatory and punitive damages to the Pangles, it found that the drainage issues caused by the apartment construction resulted in damage to the Pangles’ properly only at certain times, dependent on the rainfall. The trial court concluded that the statute of limitations began to run from the happening of each injury complained of and that there may be as many successive recoveries as there are successive injuries. The trial court found that the Pangles proved that the water drainage from Valley. 14Estates’ property was a nuisance from which they had been damaged, and the trial court based its compensatory award on the aggregate repair costs incurred by the Pangles over the three years preceding the filing of their lawsuit. The trial court also awarded the Pangles $10,000 in punitive damages against Valley Estates.
In this appeal, Valley Estates argues that the trial court erred in finding that the negligently constructed apartment complex constituted a temporary nuisance, as opposed to a permanent nuisance. The question of whether a nuisance is permanent or temporary is a question of law. See McAllister v. St. Louis, I.M. & S. Ry. Co., 107 Ark. 65, 154 S.W. 186 (1913). The appellate court gives no deference to conclusions of law, which are reviewed de novo. Aceva Techs., LLC v. Tyson Foods, Inc., 2013 Ark. App. 495, 429 S.W.3d 355. The statute of limitations for a nuisance claim is three years, see Jones v. Sewer Improvement District No. 3 of City of Rogers, 119 Ark. 166, 177 S.W. 888 (1915), and Valley Estates argues that because a permanent nuisance was created when the apartment complex was completed in 2007, the three-year limitations period expired prior to the filing of the Pangles’ complaint.
The pivotal issue in this case is whether the nuisance created by Valley Estates was permanent, in which case the limitations period expired, or temporary, in which case the Pangles have a right to successive actions for each injury and are not barred from recovery by the statute of limitations. We hold, as a matter of law, that the nuisance complained of is permanent and therefore that the Pangles’ action was barred by the statute of limitations.
Under Arkansas law, the general policy for a nuisance claim is to avoid multiplicity of actions and, if practical, to afford compensation in one action for all injuries. Int'l Shoe Co. v. Gibbs, 183 Ark. 512, 36 S.W.2d 961 (1931). When a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, and the statute of limitations begins to run upon the construction of the nuisance. Turner v. Overton, 86 Ark. 406, 111 S.W. 270 (1908). Where the cause of injury is a permanent nuisance, as where permanent structures are erected infringing on the plaintiffs rights to his land, such as railroad embankments,' culverts, bridges, and dams, a single action should be brought for the entire damages, both past and prospective, which will bar a subsequent action. Missouri Pac. R.R. Co. v. Neal, 212 Ark. 866, 208 S.W.2d 176 (1948). A permanent nuisance is one that will continue without change from any cause except human labor. See Kelly v. Kansas City S. Ry. Co., 92 Ark. 465, 123 S.W. 664 (1909). Where a nuisance causes a permanent injury to property, the measure of damages will be the depreciation in the value of the property; that is, the difference between its value before and after the injury. Czarnecki v. Bolen-Darnall Coal Co., 91 Ark. 58, 120 S.W. 376 (1909).
A temporary nuisance, on the other hand, has been defined as a temporary interference with the use and enjoyment of property. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 404 A.2d 889 (1978). Examples of a temporary nuisance include yelping dogs, misdirected golf balls, or offensive odors. Howard W. Brill, Arkansas Law of Damages § 28:4 (5th ed.2004). Our supreme court has held that when a structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage that has happened, and there be as many successive recoveries as there are successive injuries; in such case the statute of limitations | ^begins to run from the happening of the injury complained of. St. Louis, Iron Mountain & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331 (1889). If an injury is not a permanent one but 6nly temporary or removable, the measure of damages has been held to be the depreciation in the rental value of the property during the time of its maintenance or up to the time of trial. Czamecki, supra.
In the case at bar the nuisance created by the construction of the apartment complex created a permanent nuisance, i.e., a nuisance that may be expected to continue. See O’Brien v. City of O’Fallon, 80 Ill.App.3d 841, 36 Ill.Dec. 36, 400 N.E.2d 456 (1980). Mr. Pangle testified that he knew during construction that the construction was going to cause drainage issues to his property, and the construction itself caused inevitable and certain injury to the Pangles. In the Pangles’ complaint they alleged that their property was damaged every time it rained and that damage had occurred more than eighty-seven times in less than three years. It is clear that the nuisance is permanent in that it will continue to cause drainage damage to the Pangles’ driveway.
In Missouri Pacific Railroad Co., supra, it was alleged that the appellant railroad company had negligently constructed a roadbed with insufficient openings and drains. This resulted in an overflow of flood waters in 1943 and again in 1945 that caused damage to the appellees’ adjoining property and the destruction of growing crops. The appellees attempted to sustain separate claims for damages from the 1943 and 1945 incidents. However, the supreme court held that the injury caused by the railroad’s negligence in failing to provide sufficient openings and drains at once caused a permanent nuisance damaging the appellees’ property, and that |7the recovery for damages was limited to a single action as opposed to successive actions for a recurring damage from the same cause. The supreme court quoted from the following excerpt in 15 Am.Jur. Damages § 25:
If an injury to realty is permanent in character, all the damages caused thereby, whether past, present, or prospective, may be recovered in a single action. Moreover, recovery of all such damages must be in a single action, under the rule which prohibits splitting causes of action. The damages so recovered are called “permanent or original damages.” They are given on the theory that the cause of injury is fixed and that the property must always remain subject to such injury and for the purpose of preventing a multiplicity of suits and putting an end to litigation.
Similar to the permanent drainage issues caused by the railroad’s roadbed construction in Missouri Pacific Railroad Co., Valley Estates’ apartment construction caused a permanent nuisance to the Pangles’ property in the case at bar. See also Turner, supra (construction of a ditch accelerating water flow and resulting in twelve overflows in a year is a permanent nuisance).
In arguing that only a temporary nuisance was created, the Pangles rely on Jones v. Sewer Improvement District No. 3 of City of Rogers, 119 Ark. 166, 177 S.W. 888 (1915). That case involved a nuisance caused by the discharge of sewage onto the plaintiffs’ land. However, that ease is distinguishable because there it was not the permanent construction of the sewers that created the nuisance; rather, it was the faulty operation and maintenance of the sewer. In the present case, the faulty construction of the apartment complex caused a permanent nuisance with no further conduct required by Valley Estates. Because the permanent nuisance arose and was immediately actionable when the apartments were | scompleted in 2007, and the Pangles’ complaint was filed more than three years later in June 2012, the Pan-gles’ lawsuit was barred by the statute of limitations.
Valley Estates also argues that the trial court erred in awarding punitive damages to the Pangles. Valley Estates is correct. In the absence of an award of damages for the underlying cause of action, punitive damages are improper. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). Because the Pangles’ action was time-barred and the trial court thus erred in awarding compensatory damages, its award of punitive damages must be versed as well.
Reversed and dismissed.
Whiteaker and Brown, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge. .
|,Appellant Tiffany Fox appeals the order of the Benton County Circuit Court terminating her parental rights to her son, D.C. Her primary argument on appeal is that the circuit court erred in finding that termination was in the best interest of D.C.; specifically, she contends that there was insufficient evidence that D.C. would be subject to potential harm if returned to her custody. We find no error and affirm.
Our standard of review in termination-of-parental-rights eases is well settled. When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Stockstill v. Ark. Dep’t of Human Servs., 2014 Ark. App. 427, 439 S.W.3d 95; Osborne v. Ark. Dep’t of Human Servs., 98 Ark.App. 129, 252 S.W.3d 138 (2007). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Stockstill, supra. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. With these standards in mind, we turn to the facts of this case.
The. Arkansas Department of Human Services exercised an emergency hold on five-year-old D.C. in March 2013, the day after his infant brother, N.F., was killed by Tiffany’s husband, Travis Fox. Travis was also accused of killing another of Tiffany’s infant sons, T.F., in 2011. The circuit court adjudicated D.C. dependent-neglected six months later. The bases for adjudication were Travis’s confession that he caused the deaths of D.C.’s siblings by physical abuse, Tiffany’s failure to take reasonable action to protect N.F. from physical abuse by Travis, and her failure to adequately supervise D.C. and N.F. by leaving them in Travis’s care. The court concluded that the existence of the potential for abuse was known or should have been known by Tiffany, and her failure to supervise “placed both juveniles at risk of harm and resulted in the death of N.F.” The court further found that return of custody to Tiffany was not in the best interest of the child. In reaching this conclusion, the court looked to the opinion testimony of Dr. Martin Faitak. Dr. Fai-tak stated that returning D.C. to Tiffany’s care would be “actively dangerous for the juvenile,” due to Tiffany’s borderline personality disorder and her inability to recognize the reality of situations. | aHowever, the court did set the goal of the case as reunification at that time and ordered DHS to provide services to Tiffany.
Subsequent to adjudication, the court took periodic review of the services provided and Tiffany’s progress toward the goal of reunification. By court order, DHS provided the services of counseling, parenting classes and domestic-violence classes. With regard to counseling, Tiffany began her sessions but did not make significant progress in therapy. Tiffany completed parenting classes and had been attending domestic-violence classes. Despite this attendance, however, an incident occurred wherein the Rogers Police Department received a disturbance call from Tiffany’s boyfriend, Aaron Mcabee, that she had choked him during an altercation. As a result of Tiffany’s limited progress, the court changed the goal to adoption at permanency planning.
DHS filed its petition for termination of parental rights in March 2014, alleging four statutory grounds. The petition also alleged that D.C. was adoptable and that he was at high risk of potential harm if returned to Tiffany because she had not accomplished her case goals and “continue[d] to be emotionally unstable, continue[d] to engage in dangerous behavior, and ... demonstrated little insight into her behaviors which put D.C. at risk.”
Following a hearing, the circuit court found that DHS had established the necessary statutory grounds and that termination was in D.C.’s best interest. With regard to the |4potential harm of returning D.C. to Tiffany’s custody, the court found not only that Tiffany had not accomplished her case plan goals, but also that she “continues to be emotionally unstable, continues to engage in dangerous behavior, and has demonstrated little insight into her behaviors which put D.C. at risk.” It is from the court’s termination order that Tiffany brings the instant appeal. Tiffany’s primary argument on appeal is that the circuit court clearly erred in finding that D.C. would be subject to potential harm if he were returned to her custody.
Termination of a parent’s rights must be based on clear and convincing evidence that it is in the best interest of the child, considering the likelihood that the child will be adopted if the parent’s rights are terminated and the potential harm caused by returning the child to the custody of the parent. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.Sd 520; Ark.Code Ann. § 9-27-341(b)(3)(A). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Stockstill, supra. When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is 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. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.
| fiWe conclude that the trial court correctly found that D.C. would be subject to potential harm if returned to Tiffany. Dr. Karen Farst opined that the injuries sustained by D.C.’s siblings at or around-the times of their deaths were not injuries that one would expect to find in non-ambulatory infants, and, moreover, they were injuries that would certainly be noticeable to a caregiver. In response, Tiffany denied ever seeing bruises or other injuries on either child. She acknowledged Dr. Farst’s testimony that the injuries would have been visible to the children’s caretaker, but she maintained that she did not see any bruises on the children except for one on N.F.’s head that she said he had caused himself. We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Accordingly, we find no error in the court’s conclusion that Tiffany demonstrated little insight into her behaviors that put D.C. at risk.
Likewise, we find no error in the court’s conclusion that Tiffany continued to be emotionally unstable. Dr. Faitak performed two psychological exams on Tiffany: one in April 2013 and another in March 2014. After his first examination, Dr. Faitak felt that Tiffany was unstable and that it would be “actively dangerous” for her to have children with her. Given her diagnosis of borderline personality disorder, Dr. Faitak recommended that D.C. not be placed with Tiffany until she admitted to her problems and her need for help. By the time of the second evaluation, Tiffany seemed to have made a moderate amount of progress: she appeared less anxious, less depressed, and more stable. Dr. Faitak still felt, however, that she continued to need therapy and was concerned that she still did not take responsibility for D.C. being in foster care. He opined that, assuming she was currently making progress in her |(itherapy, she would still need at least two more years of active therapy. Despite the data that she was progressing and improving as a result of therapy, Dr. Faitak said that he nonetheless did not think it would be safe to place a six-year-old child in her home.
Dr. Faitak’s opinion was supported by other evidence. Leigh Wade, a social worker with Ozark Guidance Center, testified that she had conducted individual and family therapy with Tiffany and D.C. Wade noted that Tiffany had made progress in some respects, but “not the progress I would expect with the therapy that we have done.” Laura Byler, a mental-health therapist at DaySpring Behavioral Health, saw Tiffany twice: once at her intake assessment and once in a regular appointment. Byler said that she spoke to Tiffany about her children, and Tiffany did not take “any sort of responsibility for why [D.C. was] in foster care.” Byler felt that Tiffany was just “going through the motions” with her counseling and had missed scheduled appointments. Although Tiffany was cooperative during her sessions, she made “little to no progress” with her treatment.
We further find no error in the court’s conclusion that Tiffany continued to engage in dangerous behavior. Wade stated that Tiffany had not progressed with her understanding of the role of a parent as protector. Tiffany had also not taken any sort of responsibility in her sessions for D.C. being in care, nor had she taken any responsibility for the deaths of her other two children. Wade said that Tiffany lacked understanding about domestic violence, and her failure to grasp the dangers and realities of a domestic-violence situation could cause a child in her care to not be safe. Specifically, with regard to Tiffany’s progress, Wade testified that her
17ability to recognize a violent relationship, and to take responsibility for her child’s safety, is still not there. I don’t see enough evidence that would make me assess that that situation is safe at this time. I’m telling you, at this time, I feel it is unsafe to send D.C. home.
Byler noted that, although Tiffany said she needed to work on her relationships, she never acknowledged that she needed to work on her domestic-violence issues.
In considering the potential harm caused by returning the child to the parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. 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. Collins v. Ark. Dep’t of Human Servs., 2013 Ark. App. 90, 2013 WL 546940. Additionally, the risk for potential harm is but a factor for the court to consider in its analysis. Carroll v. Ark. Dep’t of Human Serv., 85 Ark.App. 255, 148 S.W.3d 780 (2004).
In this case, the evidence showed that Tiffany never acknowledged her role in failing to protect her two other children from being killed by her husband; she had ongoing, unresolved issues regarding domestic violence; she failed to participate in therapy and counseling that were designed to help her understand and address those issues so that she could provide a safe home for her child; and all of her mental-health professionals agreed that she would need at least one or two more years of active participation in consistent, intensive therapy before any of them would feel comfortable in saying that D.C. could be safely returned to her care.
A parent has a duty to protect a child and can be found to be unfit even though she did not directly caiuse her child’s injury; a parent must take affirmative steps to protect her |schildren from harm. Vasquez v. Ark. Dep’t of Human Servs., 2009 Ark. App. 575, 337 S.W.3d 552. Recently, in Drake v. Arkansas Department of Human Services, 2014 Ark. App. 475, 442 S.W.3d 5, this court affirmed the termination of a father’s parental rights and upheld the circuit court’s potential-harm finding where the father persistently denied the danger posed to his children by his wife’s mental-health issues. In the instant case, Tiffany failed to recognize the necessity of ongoing therapy and counseling and refused to acknowledge her role as protector of her son. Therefore, it was not clearly erroneous for the trial court to determine that termination was in D.C.’s best interest due to the potential threat of harm to him if returned to Tiffany’s care.
Affirmed.
PITTMAN and GLOVER, JJ., agree.
. D.C.’s father, Ismaile Castro, also had his parental rights terminated; however, he is not a party to this appeal.
. Travis Fox was eventually convicted of murder in both children's deaths and was sentenced to life in prison.
. Because Tiffany does not challenge the statutory grounds on appeal, these will not be recited with any specificity.
. Tiffany does not challenge the finding that D.C. is adoptable.
. Tiffany raises a brief argument wherein she suggests that the circuit court should have extended the time for termination because she was complying with the case plan and making progress toward reunification. She failed to assert below, however, that she should have been granted additional time to work on her case plan, and the argument is therefore not preserved for our review. See Cushman v. Ark. Dep't of Human Servs., 2013 Ark. App. 3, 2013 WL 168018 (noting that this court will not consider arguments raised for the first time on appeal): Gilmore v. Ark. Dep't of Human Servs., 2010 Ark. App. 614, 379 S.W.3d 501. | [
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CLIFF HOOFMAN, Judge
|, Appellant Michael Williams appeals, in this consolidated appeal, after he was convicted by a Pulaski County jury in case number 12-1651 of possession of methamphetamine or cocaine with purpose to deliver, drug paraphernalia, and maintaining a drug premises. He was sentenced to serve 360 months’ imprisonment for possession of methamphetamine or cocaine with purpose to deliver, 360 months’ imprisonment for drug paraphernalia, and 120 months’ imprisonment for maintaining a drug premises, all to be served consecutively for a total of 840 months’ imprisonment. Additionally, appellant appeals after his probation was revoked in case number 08-1708, and he was sentenced to serve 120 months’ imprisonment, consecutive to case number 12-1651 for a total of 80 years in both cases. On appeal, appellant contends that (1) the trial court “abused its discretion in concluding that defense counsel had, on cross-examination of a police officer, opened the door to testimony by the officer, on redirect ^examination, about the factual basis for the warrant that the police had obtained to authorize their search of appellant Williams’s residence” in case number 12-1651, and (2) the trial court erred in granting the State’s petition to revoke appellant’s probation in case number 08-1708. We reverse and remand appellant’s convictions in case number 12-1651 and affirm the trial court’s revocation of probation in case number 08-1708.
In case number 08-1708, appellant' entered a negotiated plea of guilty on December 15, 2008, to one count of felony possession of a controlled substance (cocaine) and one count of misdemeanor possession of a controlled substance (marijuana). He was placed on five years’ probation and ordered to pay a fine of $600 plus court costs by December 15, 2009. On April 20, 2012, a petition for revocation was filed, alleging that the appellant committed the offenses of possession, of a controlled substance with intent, possession of drug paraphernalia, and maintaining a drug premises; failed to report; and failed to pay fines and court costs.
On April 18, 2014, in case number 12-1651, appellant was charged by amended information of possession of methamphetamine or cocaine with purpose to deliver, drug paraphernalia, and maintaining a drug premises. Arkansas Code Annotated section 5-64-420 (Supp. 2013) provides in pertinent part,
(a) Except as provided by this chapter, it is unlawful if a person possesses methamphetamine or cocaine with the purpose to deliver the methamphetamine or cocaine. Purpose to deliver may be shown by any of the following factors:
(1) The person possesses the means to weigh, separate, or package methamphetamine or cocaine; or
(2) The person possesses a record indicating a drug-related transaction; or
(3) The methamphetamine or cocaine is separated and packaged in a manner |3to facilitate delivery; or
(4) The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of methamphetamine or cocaine; or
(5) The person possesses at least two (2) other controlled substances in any amount; or
(6) Other relevant and admissible evidence that contributes to the proof that a person’s purpose was to deliver methamphetamine or cocaine.
(b) A person who violates this section upon conviction is guilty of a:
(2) Class B felony if the person possessed two grams (2g) or more but less than ten grams (lOg) of metham phetamine or cocaine by aggregate weight, including an adulterant or diluent [.]
Furthermore, “[a] person who uses or possesses with the purpose to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process) prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance that is methamphetamine or cocaine upon conviction is guilty of a Class B felony.” Ark. Code Ann. § 5-64-443 (Supp. 2013). Finally, a person is guilty of a Class C felony if he or she knowingly keeps or maintains “any store, shop, warehouse, dwelling, building, or other structure or place or premise that is resorted to by a person for the purpose of using or obtaining a controlled substance in violation of this chapter or that is used for keeping a controlled substance in violation of this chapter.” Ark.Code Ann. § 5-64-402 (Supp. 2013).
A jury trial was held on April 23, 2014, in case number 12-1651. The State and appellant stipulated that the facts presented at the jury trial would also be sufficient for the revocation of probation hearing in case number 08-1708. Additionally, they stipulated that|4anything before the execution of the search warrant regarding the confidential informant would be excluded from any testimony “unless the door’s opened to that information.”
At trial on direct examination by the State, Detective Chris Littleton, a narcotics detective with the Little Rock Police Department, testified that he was investigating drug activity at appellant’s home. After Littleton had enough information to obtain a search warrant, he was present when SWAT executed the search warrant on April 10, 2012. After SWAT had secured the residence and allowed him to. enter the premises, he testified that he found appellant sitting in the front room on the couch and that there were four other people in the back room of the residence. Detective Littleton testified that he conducted a pat-down search of appellant and discovered a baggie containing an off-white rock-like substance that field tested positive for cocaine. He further explained that a person would typically break off pieces of the cocaine rock, weigh it, and sell it in portions of a quarter of gram up to a gram. In addition to the cocaine, he found two scales in the back bedroom at the residence that could be used to weigh cocaine. In the same room as the scales, he also saw some mail that belonged to appellant, including a rental receipt for the residence. While he found a box of .45-caliber rounds in the bedroom, he did not find any firearms.'
On cross-examination, defense counsel asked the following questions:
Q So you were there when the search warrant was executed back in 2012, correct?
A Yes.
Q And you said you had a SWAT team of people. About how many people were with you?
A Probably ten, maybe. It’s been a while, but I’d say at least ten.
Q So ten guys go in?
A Yes. •
laQ You guys break in the door, and there’s Michael Williams sitting on the ■couch?
A Correct.
Q Right? There are four other people there—
A Correct.
Q —in the back bedroom?
A Correct.
Q Just hanging out?
A Right. ■
Q. Okay. So you guys start to search the residence, and you said you found some scales, correct?
A Yes.
Q In a bedroom? And you said you found some cocaine on—
A Yes.
Q —Mr.—
A On Mr. Williams.
Q Okay. And that was in his pocket,—
A Yes.
Q —correct? It wasn’t out on the table—
A It was in—
Q —or anything?
A —his pants pocket.
Q Okay. So during the investigation, you guys are going through the house. .Did you find any baggies?
A Not that I know of.
Q Any packaging?
A No.
Q Okay. Did you find any large sums of money? Any cash—
A No.
Q —laying around?
A If it — if it’s not over, I think it’s $500, we don’t take it or seize it.
Q Did you see any cash laying around?
A I — I don’t recall.
Q Okay. Did you find any books or records of any kind of sales? Any cell phones? Contact lists?
A No. I didn’t go through any of that.
Q And you said you found bullets?
A Yes.
Q Did you actually find a gun?
A No gun.
Q So no gun?
A No.
liiQ So no cash, no packaging, no guns, no records, contacts lists, none of those things?
A No.
Q Okay. So ultimately this drug bust resulted in finding a few grams of cocaine and some scales.
A Yeah, a little over three grams of cocaine and two sets of scales.
After cross-examination, the State argued at a bench conference that defense counsel had “opened the door to the basis of the search warrant” on cross-examination. Defense counsel objected and argued that she did not ask any questions about anything before the execution of the search warrant and simply asked the detective what evidence was found at the residence after the execution of the search warrant. The trial court overruled the objection, and Detective Littleton testified that he obtained the search warrant after using a “cooperating individual” who went into the residence and purchased' crack cocaine from appellant. Based on this testimony, defense counsel moved for a mistrial, which was denied.
Lize Wilcox, a forensic chemist with the Arkansas State Crime Lab, confirmed that the substance found in the baggie in appellant’s pocket was cocaine. It was determined that there were 3.2693 grams of cocaine base and Levamisole. Furthermore, she testified that the residue found on a scale that was seized from appellant’s residence was in fact cocaine, a schedule II controlled substance.
Afterward, the State rested, and defense counsel made a motion for directed verdict and subsequently renewed her motion for directed verdict after the defense rested without presenting any further evidence. The trial court denied both motions. During closing arguments, defense counsel argued that while appellant possessed cocaine and was a drug addict, he was not guilty of the charges alleged. The jury convicted appellant of all charges, |7and he was sentenced to serve 360 months’ imprisonment for possession of methamphetamine or cocaine with purpose to deliver, 360 months’ imprisonment for drug paraphernalia, and 120 months’ imprisonment for maintaining drug premises, all to be served consecutively for a total of 840 months’ imprisonment.
Immediately after appellant was sentenced in case number 12-1651, a revocation of probation hearing was held in case number 08-1708. Orville Thomas, a state probation/parole agent with the Arkansas Department of Correction, testified that appellant signed that he received and understood the written rules of conduct on probation. Additionally, Thomas testified that the last time appellant reported to his probation officer was on November 14, 2013, and he still had an outstanding balance of $1,080 in fines and court costs. Appellant testified that his probation officer had told him that he was released from probation at their last meeting. After revoking appellant’s probation, the circuit court sentenced appellant to serve 120 months’ imprisonment in case number 08-1708, consecutive to case number 12-1651, for a total of 80 years in both cases. This appeal followed.
First, appellant contends that the trial court abused its discretion in concluding that defense counsel had “opened the door” to allow Detective Littleton to testify that a confidential informant previously had bought cocaine from appellant in the residence and that this incident was used as the factual basis to obtain the search warrant in case number 12-R1651. He specifically argues that defense counsel did not ask Detective Littleton any questions about anything prior to the execution of the search warrant and certainly did not ask the detective about the factual basis for the search warrant. Furthermore, appellant alleges that he was prejudiced by the trial court’s ruling because- the testimony that appellant had previously sold cocaine in the residence supplied the necessary proof of intent for each of the offenses alleged. We agree.
We review evidentiary rulings regarding the admissibility of evidence under an abuse-of-discretion standard, and we do not reverse absent a manifest abuse of that discretion and a showing of prejudice. Mendez v. State, 2011 Ark. 536, 2011 WL 6275689; Hanlin v. State, 356 Ark. 516,157 S.W.3d 181 (2004). Even if otherwise inadmissible, when a party invites discussion of a certain subject, he or she opens the door to a line of questioning by the opposing party so that the opposing party may “fight fire with fire.” Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986) (quoting Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984)).
Before trial, the parties agreed on the record that any evidence of the confidential informant’s controlled purchase from appellant that occurred before the search warrant was executed was inadmissible unless defense counsel opened the door to this line of questioning. After cross-examination, the State, over appellant’s objection, sought to introduce this testimony, arguing that defense counsel had opened the door. As for the questions and testimony elicited on cross-examination, we cannot see where defense counsel opened the door to admitting the very evidence that had been excluded by agreement pri- or to trial. Defense counsel did not inquire as to the factual basis for the search warrant or inquire as to |9the prior sale to the confidential informant. Rather, defense counsel elicited testimony that Detective Littleton did not find any evidence, other than the cocaine found in appellant’s pocket and the scales found in the back bedroom, that appellant had the requisite intent for the charges alleged. Defense counsel specifically inquired whether Detective Littleton found any sale records, cash, packaging, firearms, or contacts lists in the residence after the search warrant was executed. Therefore, we conclude that the trial court abused its discretion in allowing testimony as to what occurred before the search warrant when defense counsel only inquired about evidence found after the search warrant was executed.
However, this does not end our inquiry. Even when a trial court errs in admitting evidence, appellate courts have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). To determine if the error is slight, we can look to see if the defendant was prejudiced. Id. Here, we cannot say that the error was slight when the otherwise inadmissible testimony was direct proof of the intent required in this case. Furthermore, while the jury could have inferred that appellant was guilty based on the amount of cocaine and scales found, we cannot say that appellant’s evidence of guilt was overwhelming. Thus, we reverse and remand appellant’s convictions in case number 12-1651 for a new trial consistent with this opinion.
Next, appellant contends that the trial court erred in granting the State’s petition to revoke appellant’s probation in case number 08-1708. The State alleged three separate and independent violations as grounds for revoking appellant’s probation: he committed the | ^offenses of possession of a controlled substance with intent, possession of drug paraphernalia, and maintaining a drug premises; he failed to report; and he failed to pay fines and court costs. After hearing all testimony and evidence, the trial court revoked appellant’s probation without making specific findings as to which violation it relied on, stating that appellant was “[g]uilty. Ten years ADC. Jail credit to be determined.”
In a revocation proceeding, the State must prove its case by a preponderance of the evidence, and on appellate review, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Doyle v. State, 2009 Ark. App. 94, 302 S.W.3d 607. Where multiple offenses are alleged as justification for revocation of probation, the trial court’s finding that revocation is justified must be affirmed if the evidence is sufficient to establish that the appellant committed any one of the offenses. Id. When a trial court bases its decision on multiple, independent grounds, and an appellant challenges only one of those grounds on appeal, we can affirm without addressing the merits of the argument. Breeden v. State, 2013 Ark. App. 522, 2013 WL 5371952. Here, appellant specifically argues that this court should reverse because. of the error that occurred in appellant’s trial in case number 12-1651. However, he does not challenge the alternative grounds of failure to report or failure to pay fines and costs as alleged in the petition for revocation and as orally amended at the revocation hearing. Because the appellant failed to challenge the trial court’s alternative grounds for revocation on appeal and the State presented evidence on these violations, we must affirm the trial court’s revocation of probation in case number 08-1708. Bedford v. State, 2014 Ark. App. 239, 2014 WL 1663033.
Affirmed in part; reversed and remanded in part.
Gladwin, C.J., and Glover, J., agree.
. Although Williams’s probation was revoked after the original probation period would have expired, the record contains evidence that he was arrested for violation of his probation prior to its expiration. See Ark.Code Ann. § 16 — 93—308(f) (Supp. 2013). As such, the trial court had jurisdiction to revoke appellant’s probation. | [
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KENNETH S. HIXSON, Judge
IjA Pulaski County jury found that Ver-lon Spencer, Barton AG Center, Inc., and Greenway Equipment, Inc. (sometimes referred to collectively as “Greenway” or as appellants) committed the tort of conversion with respect to two John Deere tractors owned by appellee William Case. The jury awarded compensatory and punitive damages against Greenway. Greenway appeals, raising two points for reversal: (1) that the trial court erred in submitting the conversion claim against them to the jury; and (2) that the trial court erred in submitting the punitive damages claim against them to the jury. We affirm the compensatory damages awarded against appellants on the conversion claim, but we reverse the punitive damages.
|2Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another that is inconsistent with the owner’s rights. Id. The intent required is not conscious wrongdoing, but rather an intent to exercise dominion or control over the goods that is inconsistent with the plaintiffs rights. Id. Convérsion can occur even where the party who took the property is operating under a mistaken belief. Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007).
The appellant’s arguments on appeal challenge the trial court’s denial of their motions for directed verdict and motion for judgment notwithstanding the verdict. The standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Med. Assurance Co., Inc. v. Castro, 2009 Ark. 93, at 3, 302 S.W.3d 59'2, 595 (quoting ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008)). Similarly, in reviewing the denial of a motion for judgment notwithstanding the verdict, the appellate court will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. In determining whether there is substantial evidence, the court views the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered. Id.
lain 2008, William “Buddy” Case was working in the farming and dirt-moving business. He was a member of a limited liability company known as A&B Land Development. The members of the limited liability company were Buddy Case and Alex Liles. Michael Booth worked part-time for A&B Land Development as a subcontractor. An opportunity arose in 2008 for A&B Development to move dirt for a housing project in Conway, Arkansas. Mr. Case testified that he furnished the equipment and Michael Booth did the work. A&B Land Development did not have the appropriate heavy equipment to perform the project. Buddy Case purchased a two-wheel drive John Deere 4840 Row Crop Tractor from Barton AG Center. The salesman for Barton AG was Verlon Spencer. Both Buddy Case and Michael Booth discussed the purchase with Verlon Spencer. The sales price of the John Deere 4840 was $17,500. Buddy Case made a $2,000 down payment and financed the balance of $15,500 through John Deere Credit. All of the financing documents and the loan contract were signed by “William A. Case” in his individual capacity.
At some point during the project, a John Deere 8960 tractor previously owned by Buddy Case broke down. As a result, Buddy Case bought a replacement four-wheel drive John Deere 8970 from Barton AG again through the salesman, Verlon Spencer. The sales |4price of the John Deere 8970 tractor was $49,500. Buddy Case made an $8,000 down payment and financed the balance of $41,500 through John Deere Credit. All of the financing documents and loan contract were signed by “William A. Case” in his individual capacity.
By 2009, A&B Land Development was not successful, and Case wanted out of the business. Booth approached John Peters with the opportunity to purchase the two John Deere tractors at issue in this case, and Peters agreed to buy the tractors. Booth and Peters went to Barton AG Center in September 2009, and Verlon Spencer assisted in the sale of the tractors to Peters. The tractors were financed with John Deere Credit in the sole name of John Peters. The evidence suggested that Spencer may have been operating under the mistaken assumption that Booth was entitled to possess the tractors when he assisted with the Peters transaction. Peters would ultimately default on the loan contract and finance agreement with John Deere Credit, and the tractors were repossessed by Barton AG Center’s successor, Greenway Equipment, sometime in 2013.
Case did not authorize the sale of the tractors to Peters and, in fact, had no knowledge of the transaction until October 2009 when he received a letter from John Deere Credit notifying him that the debts related to the John Deere 4840 and the John Deere 8970 had been satisfied. Case attempted to discuss the sale of the tractors with employees of Barton AG | aCenter, including Verlon Spencer, but no one would discuss the matter with him citing a “privacy act.”
In November 2009, Booth and Case went to attorney Skip Davidson to discuss the sale of Case’s interest in A&B Land Development limited liability company to Booth. Davidson drafted a sales agreement (“Sales Agreement”) that Booth and Case each signed. The sales price for Case’s interest in the limited liability company was $25,000 plus payment and performance of other items by Booth enumerated in the Sales Agreement. The Sales Agreement also provided that Booth would cause Buddy Case’s name to be removed from the debt related to the John Deere 4840 and that Booth would pay Case $2,909.87. Case testified that this $2,909.87 related to some expenses Case had paid for repairs on the John Deere 4840. The Sales Agreement also provided that Booth would cause Buddy Case’s name to be removed from the debt related to the John Deere 8970 and that Booth would pay Case $8,000. It was undisputed at trial that Booth had not made any of these payments to Case, although Booth did cause Buddy Case’s name to be removed from the two John Deere loan contracts.
Based on these facts, Case filed this lawsuit. The operative complaint is the fourth amended complaint filed in August 2013. Case sued John Peters, Michael Booth, Barton AG Center, Inc., its employee Verlon Spencer, and its successor in interest Greenway Equipment, Inc. The complaint set forth causes of action for breach of Sales Agreement (against Booth), conversion (against all defendants), trespass to chattels (against Booth and Peters), civil conspiracy (against all defendants), unjust enrichment (against all defendants), negligent | (¡supervision and retention (against Barton AG and Green-way), deceptive trade practices (against Spencer, Barton AG, and Greenway), invasion of privacy by public disclosure of private facts (against Spencer, Barton, and Greenway), and failure to comply with the Arkansas Uniform Commercial Code (against Barton AG and Greenway). Case sought compensatory and punitive damages.
The case proceeded to trial by jury on March 11-13, 2014. At the close of the plaintiffs case-in-ehief, the trial court granted the motions for directed verdict of the appellants on the counts of failure to comply with the Arkansas Uniform Commercial Code, invasion of privacy, and deceptive trade practices. Additionally, Case abandoned his claims for unjust enrichment and negligent supervision and retention. The appellants asked the trial court to grant a directed verdict on the claims of civil conspiracy, conversion, and punitive damages, but these motions were denied. All defendants rested without calling any additional witnesses. The appellants renewed their motions for directed verdicts. The trial court granted the motion for directed verdict on the civil conspiracy count. The trial court denied the motions for directed verdict on the claims for conversion and punitive damages. Additionally, the trial court dismissed John Peters from the case.
The case was submitted to the jury on the conversion claim for compensatory and punitive damages against Booth, Spencer, Barton AG and Greenway. The jury returned a verdict finding that Booth, Spencer, Barton AG and Greenway were liable for conversion and awarded compensatory damages in the amount of $8,000. The jury apportioned fault on the conversion claim 60 percent on the appellants, Spencer, Barton AG and Greenway, and 40 17percent on Booth. The jury also returned a verdict on the punitive damages against appellants, Spencer, Barton AG and Greenway, and awarded $25,000 to Case. A judgment was entered on March 25, 2014.
Following the entry of the judgment, the appellants filed a motion for judgment not withstanding the verdict, wherein they challenged both the verdict for conversion and the verdict for punitive damages. The trial court denied the motion and the appellants filed their timely notice of appeal. In this appeal, the appellants, assign error to the trial court’s denial of their motions for directed verdict on the conversion and punitive damages claims, as well as the trial court’s denial of their motion for judgment notwithstanding the verdict on these claims.
For their first argument on appeal, the appellants contend that there was insufficient evidence to support Case’s conversion claim. The appellants argue that there was no proof that Barton AG/Green-way exercised possession or dominion of the two tractors when the tractors were sold to Peters in September 2009, and that because appellants did not possess the tractors there \tfas no basis to support Case’s claim for conversion.
We need not determine whether the sale and financing of the John Deere tractors in 2009 to John Peters constituted' a conversion of the tractors by the appellants because there was testimony at trial that Greenway took possession of the tractors in 2013. Although the | ¿primary thrust of Case’s complaint was that the appellants committed conversion in 2009 when they assisted Booth and Peters in the sale and financing of the tractors, in paragraphs 76 and 77 of the conversion count in his fourth amended complaint Case also alleged:
76. Upon information and belief, Barton (now Greenway) is in possession of Tractors One and Two, and holding them in derogation of Case’s rights in Des Arc, Prairie County, Arkansas.
77. Defendants Barton and Green-way are intentionally covertly possessing, taking over, and exercising dominion and control over Tractors One and Two that are the subject of this litigation in violation of Case’s rights thereto. (Emphasis added.)
When appellants made their motion for directed verdict on the conversion count, they argued that there was no testimony that the tractors had been repossessed; but, that was incorrect. Booth testified that, as a,result of a default on Peter’s 2009 loan contract and finance agreement, Greenway picked up the tractors in July or August 2013. Further, Case took and introduced photographs of the two John Deere tractors located at the Gréenway dealership in Des Arc, Arkansas. In denying appellants’ directed-verdict motion on the conversion count, the trial court cited proof that the tractors were in actual possession of appellants and stated, “If Mr. Case asserts a possessory right as to those two tractors and the two tractors are held on property owned by Barton AG/Green-way, how does that not present a jury question as to whether or not Barton AG/Greenway are exercising dominion or control over the tractors in violation of Mr. Case’s rights?” It was, at least partially, based on this premise that the trial court allowed the claim for conversion to be submitted to the jury.
We hold that the trial court committed no error in denying appellant’s directed-verdict motion as to conversion because there was substantial evidence to support Case’s conversion claim. Although appellants argued to the trial court, and now to this court, that there was no 19evidence that appellants ever had possession of the tractors, that argument fails because there was testimony that Green-way took actual possession of both tractors in 2013. Based on these facts, a fact question was presented as to whether there was a conversion committed against Case. Therefore, we affirm the compensatory damages awarded against appellants on the conversion claim.
Appellants’ remaining argument is that there was insufficient evidence to sustain the jury’s $25,000 award for punitive damages. We agree.
In conversion cases, punitive damages are not recoverable simply because the defendant intentionally exercised control or dominion over the plaintiffs property. City Nat’l Bank of Fort Smith v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990). Simply put, one cannot recover punitive damages based on the tort of conversion alone. Id. Instead, the plaintiff must show that the defendant intentionally exercised control or dominion over the plaintiffs property for the purpose of violating his right to the property or for the purpose of causing damage. Id. Additionally, the proof must rise to the level of clear and convincing evidence. See AMI Civ. 2218 (2014). Clear and convincing evidence is proof that produces a firm conviction that the allegation is true. See AMI 2218 (2014); Carter v. Four Seasons Funding Corp., 351 Ark. 637, 653, 97 S.W.3d 387, 395 (2003).
On this record, we hold that there was no substantial evidence to demonstrate that the appellants’ exercise of dominion over Case’s property was for the purpose of violating Case’s | mrights or causing him damage. The uncontroverted testimony showed that Case wanted to sell the tractors and be released from the debt obligations, and that appellants were made aware of this fact. Spencer testified that he was under the impression that Booth and Case were equal partners with equal rights to dispose of the tractors, and he was led to believe that the financing of the tractors and consequential reléase of Case’s debt in 2009 benefitted Case. And when Greenway later repossessed the tractors from Peters in 2013, there was no suggestion that this constituted anything more than Greenway’s exercise of its rights under the financing agreement as opposed to any intent to harm Case. In consideration of these circumstances, we reverse the punitive damages awarded by the jury.
Affirmed in part; reversed in part.
Virden and Harrison, JJ., agree.
. The appellants’ brief refers to Spencer, Barton AG Center, and Greenway collectively as "Greenway.”
. Alex Liles is the stepson of Michael Booth, who was one of the defendants in this case.
. Barton AG Center was later acquired by Greenway Equipment. The parties to this lawsuit stipulated that Greenway Equipment would accept liability for Barton AG Center as its successor in interest.
. Verlon Spencer testified at trial that both Case and Booth came into his office to purchase the tractor, that he was told that Case and Booth were equal partners, and that the company that was going to use the equipment was A&B Land Development.
.The evidence indicated that Booth was not credit worthy to be a party to the 2008 purchase by Cáse or the 2009 purchase by Peters.
. Case’s claim for breach of the Sales Agreement against Booth was also submitted to the jury. The jury returned a verdict finding that Booth breached the Sales Agreement with Case and awarded compensatory damages to Case in the amount of $53,976. Booth did not appeal the $53,976 judgment on the breach of the Sales Agreement, his apportionment of fault for conversion, or punitive damages.
. The issue of whether the repossession by Greenway constituted a conversion of Peters’s property is not before the court. | [
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KAREN R. BAKER, Associate Justice
| ,On March 7, 2008, appellant, Cristobal Antonio Mancia, pleaded guilty to rape and was sentenced to a term of life imprisonment. Pursuant to Arkansas Supreme Court Rule 4-3(k) (2010), Mancia filed a brief on appeal asserting that there was no meritorious basis for his appeal. We agreed and affirmed Mancia’s conviction and held:
Although counsel indicates in his brief that there was no applicable exception to the general rule that there is no right to appeal from a plea of guilty, an appeal may be taken after a guilty plea when it alleges evidentiary errors which arose after the plea and during the sentencing phase. Johnson v. State, 2010 Ark. 63 [2010 WL 1006439], In this case, the plea was entered without benefit of a plea agreement, and appellant was provided a hearing for sentencing purposes. Counsel asserts that there were no adverse rulings, however, and our review of the record confirms that there were no objections to the evidence presented to the court. See Ark. Sup.Ct. R. 4 — 3(i) (2009). Consequentially, there were no adverse rulings so as to merit an appeal.
Mancia v. State, 2010 Ark. 247, at 1, 2010 WL 2006586 (per curiam).
On July 19, 2010, pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2010), Mancia filed a petition for postconviction relief alleging eight grounds for relief. On ^February 7, 2011, without holding a hearing, the circuit court denied Mancia’s petition.
On May 31, 2011, Mancia’s attorney, Dana Reece, lodged an appeal from that decision on behalf of Mancia. Mancia v. State, 2014 Ark. 206, 2014 WL 1856744 (per curiam). Maneia’s brief, after a final extension, was due on August 25, 2011. Id. On October 5, 2011, the State filed a motion to dismiss because no brief had been filed. Id. This court granted the State’s motion on October 27, 2011. Id. Upon receiving the order of dismissal, Mancia filed a motion to reconsider dismissal and reinstate appeal on November 4, 2011. Id. After finding that Reece was at fault for failing to file the brief, this court granted Mancia’s motion. Mancia v. State, 2011 Ark. 507, 2011 WL 5995547 (per curiam). On December 1, 2011, Reece filed a brief on Mancia’s behalf. Id. Thereafter, on April 24, 2012, the Arkansas Supreme Court Committee on Professional Conduct suspended Reece for thirty-six months from representing clients before the Arkansas Supreme Court and Arkansas Court of Appeals. Id.
On February 6, 2014, because of abstract deficiencies in the brief that had been filed by Reece, we ordered rebriefing in this appeal. Mancia v. State, 2014 Ark. 55, 2014 WL 495130 (per curiam). On February 6, 2014, we notified Mancia, at the Arkansas Department of Correction, of our per curiam, and provided him with a copy. On July 1, 2014, Mancia filed a substituted brief and on July 24, 2014, the State timely responded.
From the circuit court’s February 7, 2011 order denying Mancia’s Rule 37.1 petition, Mancia appeals and contends that the circuit court erred in denying his petition on the following grounds: (1) the circuit court erred in denying Mancia’s Rule 37 petition because ^defense counsel was ineffective on eight separate grounds; (2) the circuit court erred because it did not hold an evidentiary hearing; (3) pursuant to Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), Mancia is entitled to a new Rule 37 proceeding and appointed counsel because his previous Rule 37 counsel was constitutionally ineffective.
In turning to the merits, the circuit court did not hold an evidentiary 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. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). If the files and the record show that the petition^ er is not entitled to relief, the circuit court is | required to make written findings to that effect. Ark. R.Crim. P. 37.3(a).
“On appeal from a trial court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding 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 committed. Id.” Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.
“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) ].” Henington v. State, 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
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. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 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 of postconviction relief. Anderson v. State, 2011 Ark. 488, at 5, 385 S.W.3d 783.
Finally, “the rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In that case, the Supreme Court held that the ‘cause and prejudice’ test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applied to challenges to guilty pleas based on ineffective assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366.” Buchheit v. State, 339 Ark. 481, 484, 6 S.W.3d 109, 111 (1999) (per curiam).
I. Ineffective Assistance of Counsel
With this standard in mind, we now turn to the issues' raised by Mancia. Mancia asserts that the circuit court erred with regard to eight separate grounds of relief on his | (jineffective-assistance-of-counsel argument.
A. Intoxication
First, Mancia asserts that the circuit court erred in denying his claim that he received ineffective assistance of counsel and his guilty plea is invalid because his defense counsel was intoxicated and suffered from alcoholism. Mancia contends in his Rule 37 petition that he made a specific factual allegation that his attorney was under the influence of alcohol diming his representation “and even worse while in the courtroom ... during Man-cia’s proceedings” and witnesses would be called to substantiate his claims.
The circuit court denied Mancia’s claim and explained:
Petitioner’s allegation that his attorney appeared before the Court intoxicated and that he suffered from alcoholism is unsubstantiated and unsupported by the record. As such, it is a conclusory allegation. The Petitioner must do more than make a conclusory allegation unsupported by facts. Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999); Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). A claim that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). This allegation is denied and no hearing on it is required.
Mancia contends that the circuit court erred because he made factual allegations regarding his defense counsel’s intoxication that would be substantiated if Man-cia were afforded a hearing. Further, Mancia asserts that the circuit court’s finding that Mancia’s claim is “unsupported by the record” is the wrong standard to be applied, alleging that it was the circuit court’s duty to hold an evidentiary hearing unless “the files and the record conclusively show that Mancia is not entitled to relief.”
The State responds that nothing in the record suggests that defense counsel was 17intoxicated; neither the judge, the prosecutor, Mancia or anyone else present at the hearing ever indicated that defense counsel was impaired. In sum, the State contends that the record does not demonstrate any behavior, actions, or inactions of counsel to suggest that defense counsel was impaired. The State also contends that Mancia mistakenly relies on Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) where we granted Lee’s motion to recall the mandate due to his counsel’s impairment that was reflected in the record by numerous, specific examples of counsel’s inability to defend his client during the course of the Rule 37 hearing and his counsel’s admission that he suffered from problems with alcohol. However, the State asserts that in Lee, the record was replete with examples of counsel’s erratic behavior; however, here, in Mancia’s case, the record is void of any evidence to support Mancia’s allegation. Finally, the State responds that Mancia has failed to identify any witness or identify what his or her testimony would be to support his claim. The State urges us to affirm the circuit court, asserting that Mancia bears the burden to provide facts that affirmatively support his Rule 37.1 claims and has failed to do so.
Here, the record demonstrates that defense counsel acted in an appropriate manner and there is nothing in the record to suggest defense counsel was intoxicated. During the plea, the following colloquy occurred between defense counsel, the circuit court and Mancia:
The CouRt: Now, Mr — I assume [defense counsel] has explained to ■ you that in your case that the — that the minimum penalty, as I understand it, is 25 years.
Defense Counsel: That’s what I understand, Judge.
The Court: Has [defense counsel] explained that to you?
|rDefendant Mancia: Yeah, he tell me that.
The Court: I know you signed off, but I’m going to — I’m asking you on the record, do you dispute those facts [in the agreed statement of facts]?
Defendant Mancia: That mean I’m guilty, right?
The Court: What did he say?
' Defense Counsel: He asked — he agreed with that. He says yes.
The Court: All right.
Does that mean that you agree this is a correct statement of the facts?
Defendant Mancia: Yes, sir.
Additionally, in reviewing the entire fifteen-page plea hearing, the record is absent any indication that Mancia’s defense counsel was intoxicated. Although Mancia asserts the conclusion that counsel was ineffective and his guilty plea is invalid because defense counsel was intoxicated, the record simply does not support this position. Further, Mancia fails to offer specific facts to support his conclusion or identify witnesses or provide a summary of the proposed testimony. Where 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. Moten v. State, 2013 Ark. 503, 2013 WL 6327549; Stevenson v. State, 2013 Ark. 302, 2013 WL 3946082 (per curiam) (citing Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam)). Mancia was required to establish |9that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46. Accordingly, Mancia has failed to demonstrate that the circuit court erred in its denial of his claim of ineffective assistance of counsel' on this first point.
Finally, with regard to his claim that he was entitled to an evidentiary hearing and that the “wrong standard” was applied, we do not find merit in this argument. Man-cia’s entire argument in his Rule 37 petition was as follows:
[Mancia] was denied his right to effective assistance of counsel ... by trial counsel being intoxicated at the hearings and suffering from alcohol abuse, thereby impairing his judgment and ability to function as Defendant’s counsel. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) (counsel cannot be qualified to represent a client while suffering from an alcohol problem).
The circuit court held that, Mancia’s claim that his “attorney appeared before the Court intoxicated and that he suffered from alcoholism is unsubstantiated and unsupported by the record.... This allegation is denied and no hearing on it is required.”
Here, the circuit court’s findings are sufficient to specify the basis for its ruling. Also, “the circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit.” Bienemy v. State, 2011 Ark. 320, at 5, 2011 WL 3930364. Again, simply put, the record lacks any evidence of impairment.
In sum, Mancia must show that counsel performed deficiently and that Mancia suffered severe prejudice and absent counsel’s error he would not have pleaded guilty. Mancia has failed to meet the standard under Strickland, and we affirm the circuit court on this first point.
|inB. Defense Counsel Was Ineffective for Failing to Investigate the .Victim’s Statement Before Advising Mancia to Plead Guilty
For his second claim, Mancia asserts that the circuit court erred by denying his claim that he received ineffective assistance of counsel when his defense counsel failed to investigate the victim’s statement before advising Mancia to plead guilty. Mancia contends that his guilty plea is invalid because if his defense counsel had investigated the victim’s statement further, defense counsel would have realized that the victim’s statement “was not as damaging to Mancia’s defense as Man-cia’s counsel ultimately led Mancia to believe.” Mancia also asserts that because the victim did not speak English and the officers who took the statement did not speak Spanish, “it would be very easy for the victim’s statement to be interpreted incorrectly.” Mancia contends that the circuit court’s finding that Mancia waived this claim when he decided to plead guilty is erroneous because his plea was not “knowing and intelligent” because he was advised to plead guilty based on false information.
The State responds that Mancia’s argument is without merit because Mancia pleaded guilty after hearing the prosecutor describe what Mancia was alleged to have done. Mancia made a full admission that he raped the victim. The State further responds that although Mancia alleges that he pleaded guilty based on his attorney’s alleged deficient performance, he has failed to demonstrate that his attorney’s performance had any impact on his plea.
The circuit court denied Mancia’s claim in its February 7, 2011 order and held:
Petitioner’s allegation that Mr. Bennett failed to properly investigate the statement of the victim is insufficient to merit relief under Rule 37. When a Rule 37 Petition challenges a guilty plea, the Arkansas Supreme Court has ruled that the sole issue to be decided by the court is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). If Petitioner questioned the validity of the victim’s statement, he could have exercised his right to cross-examine her at a jury trial. By choosing to enter a guilty plea, Petitioner knowingly and intelligently waived his right to do so. This allegation is denied and no hearing on it is required.
In reviewing the circuit court’s order on Mancia’s claim that the circuit court erred in denying his claim regarding the investigation of the victim’s statement, we note that the circuit court cited the correct standard, “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.” Branham v. State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987). Here, based on the record before us, and applying Strickland and its progeny, Mancia does not allege that, but for defense counsel’s failure to investigate, he would not have pled guilty. Additionally, we note that “an appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as the plea rests upon an admission in open court that the appellant did the act charged.”
Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam). Here, Mancia must allege some direct correlation between counsel’s deficient performance and the decision to enter the plea, or the petitioner is procedurally barred from postconviction relief. See Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Conclusory statements to that effect, without an alleged factual basis, do not suffice.
Under the Strickland test, Mancia must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance | ,2of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez v. State, 2012 Ark. 24, at 4, 2012 WL 234632 (per curiam). Bare assertions of ineffectiveness are not enough. Conclusory statements that counsel was ineffective will not sustain a Rule 37 petition. Anderson, 2011 Ark. 488, at 5, 385 S.W.3d 783. Mancia has failed to meet this standard and we affirm the circuit court.
C. Defense Counsel Was Ineffective for Failing to Investigate Statements Made by Mancia Prior to Mancia’s Guilty Plea and For Failing to File a Motion to Suppress Mancia’s Statements
For his third claim, Mancia asserts that the circuit court erred in rejecting Mancia’s claim that counsel was ineffective for failing to investigate the statements supposedly made by Mancia prior to the entry of Mancia’s guilty plea and for failing to make a motion to suppress Mancia’s statements “based on the fact that Mancia’s use of the English language was extremely limited.” Mancia contends that it is clear from the record that Mancia had only a second grade education and his English language was limited, the circuit court “did virtually all of the talking,” Mancia “barely said anything more than ‘yes sir.’ ” Therefore, Mancia concludes that the circuit court erred and his plea was not made knowingly and intelligently.
The State responds that the record demonstrates that Mancia has lived in the United States since 1993, Mancia indicated that he understood what he was being told, Mancia responded to questions with appropriate statements and complete answers and never stated he did not understand or was confused or anything to suggest that he did not understand the | ^proceedings.
In its February 7, 2011 order, the circuit court denied Mancia’s claim and held:
Petitioner’s allegation that Mr. Bennett was ineffective because he failed to properly investigate Petitioner’s statement to law enforcement due to Petitioner’s limited knowledge of English is not entitled to relief under Rule 37. This allegation fails because it is contradicted by the record. While Petitioner claims to have a limited knowledge of the English language, the record indicates that he never displayed any such impairment before the Court. In fact, Petitioner engaged in a lengthy discussion with the Court without the aid of an interpreter and made no request for an interpreter. (Tr. pages 9-23). Since the record demonstrates that Petitioner understands and speaks English, this allegation does not affect the voluntary and intelligent nature of his guilty plea. This allegation is denied and no hearing on it is required.
Here, we agree with the State’s position. The record fails to demonstrate that Man-cia did not understand the proceedings, that he needed an interpreter and that his defense counsel was deficient in his representation in this regard. The record demonstrates that Mancia understood the proceedings and communications. The record also demonstrates that on February 1, 2008, in preparation for Mancia’s jury trial set for February 5, 2008, defense counsel requested an interpreter. Mancia decided to plead guilty, and the trial did not occur. However, at the plea hearing on February 4, 2008, nothing in the record demonstrates that Mancia needed or requested the use of an interpreter during the plea hearing that he complains about.
Again, based on Strickland, Mancia must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance 114of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at 4, 2012 WL 234632 (per curiam). Bare assertions of ineffectiveness are not enough and conelusory statements that counsel was ineffective will not sustain a Rule 37 petition. Anderson, 2011 Ark. 488, at 5, 385 S.W.3d 783. Further, Mancia has not alleged that he suffered prejudice. Mancia has failed to meet this standard and we affirm the circuit court.
D. Defense Counsel was Ineffective for Misadvising Mancia Regarding the Range of Punishment
Fourth, Mancia asserts that the circuit court erred in denying his claim that defense counsel was ineffective for “misadvising Mancia regarding the range of punishment that applied to him.” Relying on the “Defendant’s Statement,” Mancia contends that defense counsel negligently advised him that the minimum sentence for rape was ten years when the minimum sentence was actually twenty-five years. Mancia contends that the circuit court erred because “the record clearly reflects that it was Mancia’s belief, at the time that he signed the ‘Defendant’s Statement’ and agreed to plead guilty the minimum punishment that he was facing was only ten (10) years in prison.”
The State responds that although Man-cia signed the “Defendant’s Statement” the day of his plea and the statement erroneously stated that ten years was the minimum sentence, this error is negated by the record. The State contends that the record demonstrates that Mancia clearly understood that the minimum sentence was twenty-five years.
|1sAt issue is the circuit court’s order denying Mancia’s claim:
Petitioner’s allegation that his attorney was ineffective because Petitioner was not advised of the minimum penalty for his crime is contradicted by the record. Before the acceptance of Petitioner’s guilty plea, the deputy prosecuting attorney stated on the record that the penalty range for Petitioner’s crime was a minimum of twenty-five (25) years up to a maximum sentence of life in prison. It is worth noting that Petitioner’s “Defendant’s Statement” incorrectly states that the minimum sentence for the rape of a child under the age of fourteen (14) is ten (10) years, the minimum sentence for an adult rape conviction. The Court is satisfied that the record demonstrates that this scrivener’s error is substantially outweighed by the public statement on the record and in open court of the correct minimum sentence of twenty-five (25) years before the acceptance of Petitioner’s guilty plea. The record shows that Petitioner entered his plea with the understanding that his guilty plea constituted a waiver of his right to appeal the conviction. This allegation is denied and no hearing on it is required..
Mancia asserts that the circuit court trivialized the “10 years” error on the “Defendant’s Statement” and the fact that the circuit court correctly explained the mini- . mum punishment at the plea hearing does not cure the error.
However, we disagree. Despite the error on “Defendant’s Statement,” the record demonstrates that Mancia was advised multiple times of the proper sentence:
The Court: Well, let’s say that the law says — and this is hypothetical, but if the law says that in a particular case a person could be sentenced to 10 to 40 years, or life, the Court could choose to sentence a person to 10 years, 20 years, 30 years, 40 years, or life. Any — whatever the Court feels is appropriate. Do you understand that? Defendant Mancia: Yes, sir.
The Court: Now, ... — I assume [defense counsel] has explained to you that in your case that the — that the minimum penalty, as I understand it, is 25 years.
| ^Defense Counsel: That’s what I understand, Judge.
The Court: Has [defense counsel] explained that to you?
Defendant Mancia: Yeah, he tell me that.
The Court: Well, do you understand that the Court can sentence you to 25 years or- — or more, up to the maximum? Do you understand that?
Defendant Mancia: Yes, sir.
The Court: Has anyone said to you well, you know, if you’ll plead guilty Judge Keith won’t give you more than 25 years, that’s the minimum. Has anyone said that?
Defendant Mancia: No.
(Emphasis added.)
Here, the record demonstrates that Mancia was informed and aware of the twenty-five year minimum sentence prior to the entry of his guilty plea. We also note that Mancia does not assert that but for the alleged error he would not have pled guilty or that his guilty plea was premised on his belief that the minimum sentence was ten years.
Again, based on Strickland, Mancia must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pleaded and would have insisted on going |17to trial. Buchheit v. State, 339 Ark. 481,- 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 106 S;Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at 4, 2012 WL 234632 (per curiam). Mancia has failed to meet this standard and the record does not support his position. We affirm the circuit court on this point.
E. Defense Counsel was Ineffective for Failing to Attempt to Negotiate with the State for a Sentence of Less than Life in Prison
Fifth, Mancia asserts that the circuit court erred in denying his claim that his defense counsel was ineffective when defense counsel failed to attempt to negotiate with the State for a sentence of less than life in prison. Mancia concludes that if defense counsel had negotiated with the State, it is reasonably probable that the State would have extended an offer to allow Mancia to plea to a term of years.
The State responds that the record demonstrates that Mancia pled guilty, acknowledged that there was not a plea agreement with the State, and Mancia subjected himself to sentencing by the court. The State further responds that Mancia’s position that the record demonstrates that the prosecutor would have supported a sentence less than life is not supported by the record.
The circuit court held that
Petitioner’s allegation that he was denied effective assistance of counsel because his attorney failed to pursue a favorable plea agreement with the State is not eligible for relief under Rule 37. If Petitioner was unhappy with a plea to the Court, he could have exercised his right to a jury trial. Since he chose to enter a guilty plea to the Court, the only relevant issue is whether he entered his. plea voluntarily and intelligently with the advice of competent counsel. Because this allegation does not affect the voluntary and intelligent nature of Petitioner’s plea, it is insufficient to merit relief under Rule 37. This allegation is denied and no hearing on it is required.
| atiere, in reviewing the record, the record demonstrates that the following colloquy occurred regarding Mancia’s plea:
The Court: Okay. After you have found out what you’re charged with, what the State has to prove for you to be found guilty, what evidence the State has in order to prove its case against you and that the penalties are, after you have all of that, then you can make a decision on whether or not you should plead guilty, and you need to have all of that in order to make that decision.
Do you have all of that Mr. Mancia?
Defendant Mancia: Yes, sir.
The Court: Mancia. This is a plea to the Court; that is, you don’t have a plea bargain with the State, Mr. Man-cia. Do you understand that?
Defendant Mancia: Yes, Sir.
Here, the record demonstrates that Mancia was aware that he had not received a plea bargain from the State. When a defendant pleads guilty, the only ' claims cognizable in a proceeding pursuant to Rule 37.1 are those that allege that the plea was not made voluntarily and intelligently or-that it was entered without effective assistance of counsel. See Gonder v. State, 2011 Ark. 248, 382 S.W.3d 674 (per curiam); Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam). The record demonstrates that Mancia knowingly and intelligently entered into the plea.
Again, based on Strickland, Mancia must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To |19establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 389 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at 4, 2012 WL 234632 (per curiam). Mancia has failed to meet this standard and the record does not support Mancia’s argument. We affirm on this point.
F. Defense Counsel Was Ineffective for Failing to Ensure a Translator Was Present for all Conversations With Mancia to Ensure Mancia Fully Understood the. Evidence Against Him and Potential Sentence
Sixth, Mancia asserts that the circuit court erred in denying his claim that his defense counsel was ineffective for failing to ensure an interpreter was present during all conversations with Mancia to ensure Mancia understood the evidence against him and the sentence if he pled guilty. Mancia contends that the transcript does not support the circuit court’s finding that Mancia could speak and understand English. Mancia contends that the record demonstrates that the trial judge and the court reporter both had trouble understanding Mancia’s answers. Finally, Mancia asserts that the circuit court erred because Mancia has raised a legitimate issue as to whether trial counsel owed a professional duty to obtain the services of an interpreter to fully understand the proceedings and cooperate with counsel. Mancia alleges that, based on the cold record, the circuit court could not have determined that Mancia understood the proceedings.
The State responds that the record demonstrates that Mancia understood what he was |^doing and that he' knowingly and intelligently entered his plea with the knowledge that the court was sentencing him and that he could receive a sentence of life imprisonment. Further, the State responds that Rule 37 is not a forum for Mancia to now contest the representations that he made to the court during his plea agreement.
The circuit court denied Mancia’s claim and held:
Petitioner’s allegation that [defense counsel] was ineffective because he failed to ensure the presence of an interpreter during Petitioner’s court appearances. As with the previous allegation, the court transcript contradicts Petitioner’s assertion that he struggled to speak and understand English. (Tr. pages 9-23). Since the record demonstrates that Petitioner did not struggle to speak and understand English, this allegation does not affect the voluntary and intelligent nature of Petitioner’s plea of guilty. Therefore, this allegation is denied and no hearing on it is required.
Here, despite Mancia’s allegations, as discussed previously, a review of the record demonstrates that Mancia understood the proceedings and communicated without hesitation. Without citing to specific language, Mancia generally refers to the record as support. However, the following colloquy occurred during the plea hearing:
The Court: [A]t the time you entered a plea of not guilty the Court asked the State what is the status of the file. That — and in ... your case the State said the file is open, Judge. What that means is that you, through your attorney, have access to all the information about your case that the State has; that is, any written reports, the statements of witnesses, any tests that may have been performed, the police reports, everything. And — and the reason that’s important is that it puts you in a position, through your attorney, to know what kind of evidence the State has that it would introduce at trial to convince the jury of your guilt.
Now, what I expect to have happened ... that you have, number one, told your attorney all you know about your case; and if you have, raise your right hand.
1⅞1 [Mancia] hand raised.
The Court: Okay. That’s important because it enables your attorney to — to check and see if — if some of the things that are being said or reported are accurate or if — or what kind of evidence the State may have,, really to convince the jury of your guilt.
Now, what I expect to happen is that you have discussed with your attorney the evidence that the State has. And if you’ve done that, if your attorney has talked to you about what kind of evidence the State has, .raise your right hand.
[Mancia] hand raised.
The Court: Okay. I expect your attorney to have explained to you what the State would have to prove in ... your case[] on each charge to — to enable the jury to convict you or find you guilty.
I’m going to say this again. I expect in ... your case[ ] that your attorney has explained to you what facts a jury must have in order to find you guilty. And your attorney has done that, raise your right hand.
[Mancia] hand raised.
The Court: Okay. And I expect your attorney to have explained to you what the minimum and maximum penalties are in the event you’re found guilty of any and all of. these charges. And if your attorney has done that, raise your right hand.
[Mancia] hand raised.
The Court: Okay. After you have found out what you’re charged with, what the State has to prove for-you to be found guilty, what evidence the State has in order to prove its case against you and what the penalties are, after you have all of that, then you can make a decision on whether or not you . should plead guilty, and you need to have all of |2?that in order to make that decision:
Do you have all of that Mr. Mancia?
Defendant Mancia: Yes, sir.
Here, the record demonstrates that Mancia understood the proceedings. Further, as noted in point three, although defense counsel had secured an interpreter, the record demonstrates that Mancia understood the proceedings and did not •request the use of the interpreter. Man-cia’s allegation does not affect the voluntary and intelligent nature of his plea. Pursuant to Strickland, Mancia must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the' petitioner was deprived of a fair trial. “To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52,106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at 4, 2012 WL 234632. Man- cia has failed to meet this burden and we affirm the circuit court.
G. Defense Counsel was Ineffective for Failing to Ensure that a Translator was Present at Every Hearing Where Mancia Could Fully Understand the Proceedings
Seventh, Mancia’s argument is the same argument addressed regarding the translator in points three and six above regarding the translator. For those same reasons, we reject Mancia’s seventh argument and find no clear error in the circuit court’s decision to deny relief on his claim.
|⅞⅞ Defense Counsel Was Ineffective for Failing to Inform Mancia That Mancia Would Not Have the Right to a Direct Appeal from His Guilty Plea
Eighth, Mancia asserts that the circuit court erred in denying his claim of ineffective assistance of counsel regarding his claim that defense counsel was ineffective because the circuit court did not advise Mancia that' he was giving up his right to appeal by pleading guilty. Mancia asserts that the circuit court’s handling of Mancia’s plea hearing was confusing and the “explanation process was ... slick ... and seemingly designed to elicit a waiver from Mancia without him even knowing he had done so.” Mancia also contends that the record does not demonstrate that Man-cia made a knowing, intelligent or voluntary decision to waive his right to appeal and urges this court to reverse and remand the matter for an evidentiary hearing to further develop this claim.
The State responds that Mancia does not assert that he would have insisted on going to trial had he been informed. Further, the State responds that Rule 24 of the Arkansas Rules of Criminal Procedure does not require the court to inform the defendant that he is giving up his right to a direct appeal; thus, the circuit court did not err in denying his claim.
In its February 7, 2011 order denying Mancia’s Rule 37.1 petition, the circuit court held:
Petitioner’s allegation that his attorney was ineffective because he failed to advise Petitioner of appellate process is ineligible for relief under Rule 87. As with the previous allegations, the court transcript demonstrates that Petitioner was advised that his plea of guilty would constitute a waiver of his right to appeal. (Tr. pages 12-18). Since Petitioner knew this before he entered his plea of guilty, this allegation does not affect the voluntary and intelligent nature of Petitioner’s plea. Therefore, this allegation is denied and no hearing on it is required.
124 The record demonstrates that the circuit court informed Mancia of his appellate rights:
The Court: If you’re found guilty you have an absolute right in Arkansas to appeal to a higher court; and if you cannot afford the cost of an appeal, then a free appeal will be provided to you.
A free appeal includes a verbatim, word-for-word, account, transcript, of your trial, arid a transcript of your trial is necessary to enable you to appeal and they cost money. If you are indigent, can’t afford it, then a free transcript would be provided to you to enable you to appeal. Also the assistance of legal counsel would be provided to you to enable you to appeal.
Now, if you understand these rights, raise your right hand.
[Mancia] hand raised.
The Court: If you’ve made a decision of your own will to give ivp these rights and plead guilty, raise your right hand.
[Mancia] hand raised.
(Emphasis added.)
Accordingly, the record demonstrates that Mancia was informed of his appellate rights. Mancia has made conclusory allegations with no factual support, and the record does not support his argument. Therefore, we affirm the circuit court.
II. The Circuit Court Erred in Not Holding an Evidentiary Hearing
In addition to his eight claims of error regarding his ineffective assistance of counsel claims, Mancia asserts that the circuit court also erred by not holding an evidentiary hearing 125on his claims. Pursuant to Arkansas Rule of Criminal Procedure 37.3(a) (2011), the circuit court has the discretion to deny relief without a hearing. Stated differently, “the circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit.” Bien-emy v. State, 2011 Ark. 320, at 5, 2011 WL 3930364.
Here, the files and record of Mancia’s case conclusively show that Mancia is not entitled to relief. The circuit court reviewed the pleadings and transcripts in denying Mancia’s petition for postconviction relief. In doing so, the circuit court outlined Mancia’s claims and the reasons for its denial of those claims and cited to specific points in the record and ultimately held: “Pursuant to Ark. R. Cr. P. Rule 37.3(a), the files and records of the case conclusively show that Petitioner is entitled to no relief. A hearing is not required.” Thus, we conclude that the circuit court’s written findings complied with Rule 37.3 and the circuit court applied the correct standard, that the files and record of Mancia’s case conclusively show that Mancia is entitled to no relief. Accordingly, w;e affirm the circuit court’s denial of Mancia’s request for postconviction relief.
We hold that the allegations in Mancia’s appeal are such that it is conclusive on the face of the petition that no relief is warranted. As discussed at length above, many of Mancia’s arguments are unsupported by evidence or authority, and are conclusive in nature. Therefore, we affirm the circuit court’s denial of relief without an evidentiary hearing.
III. Pursuant to Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S.-, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013): Mancia is Entitled to a Remand and a New Rule 37 Proceeding Because His Previous Rule 37 Counsel Rendered Ineffective Assistance of Counsel and He is Entitled to Appointment of New Counsel
12fiFor his final and alternative point on appeal, Mancia asserts that, pursuant to Martinez and Trevino, he is entitled to a remand of his Rule 37 case to the circuit court for renewed proceedings on the ground that he received ineffective assistance of post-conviction counsel. Additionally, Mancia asserts that his case compels the appointment of counsel. The State responds that Martinez and Trevino are not applicable to Mancia’s case and this court has rejected the argument that Martinez and Trevino require appointment of counsel. In Watson v. State, 2014 Ark. 203, at 11, 444 S.W.3d 835, 843, we explained:.
In March 2012, the United States Supreme Court decided Martinez, holding in part that “when a State requires a . prisoner to raise an ineffective-assis tance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1318. In other words, where state law bars a defendant from raising claims of ineffective assistance of trial counsel on direct appeal, “a procedural default will not bar a federal habe-as court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id., 132 S.Ct. at 1320; see also Dansby v. Norris, 682 F.3d 711, 729 (8th Cir.), adhered to on denial of reh’g sub nom. Dansby v. Hobbs, 691 F.3d 934 (8th Cir.2012). In 2013, the Supreme Court revisited the procedural-default issue in Trevino and stated that the Martinez Court had read the previous decision in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) “as containing an exception, allowing a federal habeas court to find “cause,” thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.” Trevino, — U.S. at-, 133 S.Ct. at 1918 (alteration in original) (citing Martinez, — U.S. at-, 132 S.Ct. at 1318-19, 1320-21). In Paige v. State, 2013 Ark. 432 [2013 WL 5883809] (per curiam), this court briefly discussed the holdings of Martinez and Trevino and commented that neither decision dictates that counsel must be appointed on appeal in a postconviction proceeding. Be that as it may, the issue Watson raises on appeal was not presented to the circuit court. In hisJjjpetition for postcon-viction relief, Watson made a general request for the appointment of counsel. However, he did not argue, as he does on appeal, that the appointment of counsel was required under the Martinez decision. As we have stated, we do not consider issues that are raised for the first time on appeal. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.
Although we note that Mancia asserts that he. did not present and could not have presented, his argument in his Rule 37.1 petition because Martinez was not decided until the following year, he claims that his claim falls within one of the Wicks exceptions. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Specifically, he asserts that “defense counsel [had] no. knowledge of the error and hence no opportunity to object” because Martinez was not handed down until after Mancia’s Rule 37.1 proceedings below had been concluded. Even if Mancia had preserved this argument, we have held that this does not “dictate that counsel must be appointed on appeal in a postconviction proceeding.” Accordingly, we deny Mancia’s request for appointment of counsel and his request to remand for a new hearing.
Affirmed.
.Mancia asserts that the circuit court’s order must be reversed on the following eight separate grounds:
1. Defense counsel was ineffective because he was intoxicated.
2. Defense counsel was ineffective because counsel did not investigate the victim’s statement to the police.
3. Defense counsel was ineffective because counsel did not investigate or move to suppress Mancia’s statement and did not secure an interpreter.
4. Defense counsel was ineffective because counsel did not inform Mancia of the accurate minimum sentence.
5. Defense counsel was ineffective because counsel failed to secure a set sentence in the plea deal.
6. Defense counsel was ineffective because counsel did not have an interpreter present at all conversations he had with Mancia.
7. Defense counsel was ineffective because counsel did not have an interpreter present during all court proceedings held in the case.
8. Defense counsel was ineffective because he did not inform Mancia that he was giving up his right to appeal by pleading guilty. | [
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KAREN R. BAKER, Associate Justice
| iThis case involves an appeal from a denied petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appeals from denied Rule 37 petitions are assigned to this court by the text of the Rule itself. See Ark. R. Crim. P. 37.3(b) (“If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court.”). For reversal, appellant Roy Smith contends that the circuit court erred in finding that his trial counsel was not ineffective for (1) refusing to strike a juror after being told that the juror was an acquaintance of Smith’s sister and did not like Smith; (2) failing to properly move for a continuance because of an absent witness; and (3) failing to object to the legality of the search of Smith’s home despite being advised that the officers executing the search did not knock and announce prior to entering and executed the search prior to 6:00 a.m. We find no error and affirm.
12An Arkansas County Circuit Court jury found Smith guilty of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and unauthorized use of property to facilitate a crime. An order reflecting those verdicts was entered on June 17, 2009. On that same date, the jury recommended sentences of eighty years imprisonment for the possession-of-cocaine charge, thirty years’ imprisonment and a $10,000 fine for the possession-of-marijuana charge, and forty years’ imprisonment and a $15,000 fine for the unauthorized-use-of-property charge. The circuit court ordered that the jury sentences run consecutively, followed by an additional ten years’ imprisonment pursuant to Arkansas Code Annotated section 5-64^411, resulting in a total sentence of 160 years’ imprisonment and a $25,000 fine. The circuit court took into account Smith’s “possession of more than One Hundred (100) grams of cocaine as well as [SmithJ’s previous record consisting of Twelve (12) felony convictions, Four (4) of which involve either Possession of Cocaine with Intent to Deliver or Delivery of Cocaine,” in determining the appropriate sentence.
Smith appealed his conviction and challenged the sufficiency of the evidence to support the convictions for possession of cocaine with intent to deliver and unauthorized use of property to facilitate a crime. He also appealed the denial of his motions to suppress the fruits of a search and for a continuance. The court of appeals affirmed on February 9, 2011. Smith v. State, 2011 Ark. App. 110, 381 S.W.3d 144. On May 2, 2011, Smith filed a “Petition for New Trial,” requesting that the circuit court set aside his judgment and conviction and order |sa new trial pursuant to Rule 37.1.
In his Rule 37 petition, Smith contended that his trial counsel was ineffective for refusing to strike a juror after being told that the juror was an acquaintance of Smith’s sister and did not like Smith; failing to make any argument as to the sufficiency of the evidence on the unauthorized-use-of-property charge; failing to properly move for a continuance because of an absent witness; and failing to object to the legality of the search of Smith’s home despite being advised that the officers executing the search did not knock and announce prior to entering and executed the search prior to 6:00 a.m.
On August 22, 2011, the circuit court held an evidentiary hearing on Smith’s Rule 37 petition. Smith was represented by counsel at the hearing. In a written order filed on September 2, 2011, the circuit court denied Smith’s petition and request for a new trial and determined that Smith had not established that his trial counsel was ineffective. No notice of appeal was filed from that order.
On June 13, 2012, Smith filed a pro se motion for belated appeal with this court. We remanded to the circuit court for an evidentiary hearing on the issue of whether Smith timely informed his counsel of his desire to appeal from the order denying his Rule 37 petition. This court directed the circuit court to “enter Findings of Fact and Conclusions of Law within ninety days of the date of this opinion and submit the findings and conclusions to this court | with the transcript of the evidentiary hearing.” Smith v. State, (Smith II) 2012 Ark. 331, at 2, 2012 WL 4017372 (per curiam). Upon remand, the circuit court found that smith had sufficiently informed counsel of his desire to appeal from the Rule 37.1 order and that counsel was obligated to file a notice of appeal from the Rule 37.1 order. Smith v. State, (Smith III) 2013 Ark. 166, at 3-4, 2013 WL 1694911 (per curiam). This court accepted the circuit court’s findings and granted Smith’s pro se petition for belated appeal.
On April 15, 2014, Smith filed a second motion for belated appeal and petition for writ of certiorari to complete the record. In his motion, Smith contended that (1) the transcript from Smith’s trial did not include a transcript of the jury selection; (2) the transcription of the oral motion for continuance and the hearing on Smith’s motion to suppress were not made part of the record for the Rule 37 proceedings; and (3) the affidavit for search warrant, the warrant, and the motion to suppress were not part of the Rule 37 record. Thus, Smith requested that this court grant an additional thirty days to complete the record with these documents. On May 8, 2014, this court granted Smith’s petition for writ of certiorari to complete the record and ordered that a supplemented record be filed. As Smith’s appeal from the denial of his Rule 37 petition is now properly before this court, we turn to the merits.
We will reverse a trial court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909; Banks v. State, 2013 Ark. 147, 2013 WL 1491272. A finding is clearly erroneous when, although there is evidence to support it, the appel late court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d|s694.
In reviewing a claim of ineffective assistance of counsel, we consider the totality of the evidence. Keck v. State, 2012 Ark. 145, at 2, 2012 WL 1130588. Under our standard of review, we assess whether counsel’s performance was effective under the two-prong standard that the Supreme Court of the United States articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective assistance of counsel, a petitioner must show (1) that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that counsel’s particular errors “actually had an effect on the defense.” Lee v. State, 2009 Ark. 255, at 3, 308 S.W.3d 596, 600 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). The question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is “whether the 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.” Id.
There is a strong presumption that the trial counsel’s representation falls within the wide range of reasonable professional assistance. Id. To overcome the presumption, the petitioner must identify specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. According to the second prong of the Strickland test, even if counsel’s conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. Id. (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052). The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been [ (¡different.” Id. at 4, 308 S.W.3d at 601 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). To prevail under Strickland, a claim of ineffective assistance of counsel must satisfy both prongs of the Strickland test. State v. Brawn, 2009 Ark. 202, 307 S.W.3d 587 (per curiam).
Smith’s first point on appeal is that the circuit court clearly erred by denying his motion for a new trial on the ground that his trial counsel was ineffective for failing to strike a juror, identified as Juror Lane, from the jury panel. Smith asserts that he urged his counsel to strike Lane because Lane “hung out with his sister,” “lived with a guy named Donald Banks,” and that “Banks and Smith had some issues with Dittrich, the prosecutor in [Smith’s] case.” Smith further asserts that he told trial counsel that “Banks did not like him and that there was hostility between” the two men. During Smith’s Rule 37 hearing, his trial counsel testified that he did not recall Smith advising him to strike Lane.- Although trial counsel acknowledged that it was his general practice to follow a client’s suggestions on such matters, he stated that the circumstances during jury selection might cause him to change his general practice. For example, trial counsel testified that “you may have to choose ... the least offensive or harmful of those jurors.” The circuit court concluded that Smith “did not establish how, in the entire context of the trial, the seating of juror Lane prejudiced him.” In addition, the circuit court determined that “matters of trial strategy are not grounds for finding ineffective assistance of counsel.”
The decision to accept or exclude a particular juror may be a matter of trial strategy or technique. Cunningham v. State, 2013 Ark. 304, at 5, 429 S.W.3d 201, 206 (per curiam); Butler v. State, 2011 Ark. 435, 384 S.W.3d 526 (per curiam). The circuit court correctly 17concluded that matters of trial strategy and tactics are not grounds for a finding of ineffective assistance of counsel. See id. Based on the testimony given by Smith’s trial counsel with regard to Lane, we cannot say that the trial court clearly erred in finding that the decision to keep the juror was anything other than trial strategy.
For his second point, Smith contends that his trial counsel was ineffective for failing to execute an affidavit in compliance with Arkansas Code Annotated section 16-63-402 which resulted in the trial court denying his motion for a continuance. Section 16-63^402 provides:.
(a) A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness, will prove and not merely show the effect of the facts in evidence, that the affiant believes them to be true, and that the witness is not absent by the consent,, connivance, or procurement of the party asking the postponement.
(b) If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. However, the opposite party may controvert the statement so set forth in the motion for continuance by evidence.
Ark.Code Ann. § 16-63-4102 (Repl. 2005b According to Smith, he told his trial counsel about several witnesses that could help his case. One of those witnesses was Roderick Frye. Smith contends that he told his trial attorney that Frye had been seen at the rear end of Smith’s vehicle with the trunk open and that Frye had told Smith that the trunk of Smith’s vehicle was open. During Smith’s Rule 37 .hearing, his trial counsel agreed that the importance of that testimony, had it been able to be given at trial and considered by the jury to be true, would have been some evidence that other parties may have had an opportunity [ 8to put controlled substances in the car. Trial counsel acknowledged that such testimony would have “opened that issue up.” Trial counsel further testified:
All I had was the information coming from Mr. Smith, who had told me on more than one occasion that he had talked to Mr. Frye, and prior to this search warrant being executed, I think it was several months prior to that, that Mr. Frye had been seen at the rear end of his vehicle with the trunk open. And that it had occurred several weeks before this incident ... I was never able to locate, even with the help of law enforcement and the Prosecuting Attorney, locate Mr. Frye. In fact, I do know that I asked Mr. Smith, if you locate him, get him on the phone, you know, I have an investigator that works for me, we would gladly take his testimony — or take his statement — from him.
Finally, Smith’s trial counsel testified that although he was familiar with section 16-63-402, he was not familiar with the substance of subsection (b) of the statute.
The objective in reviewing an assertion of ineffective assistance of counsel for failure to call certain witnesses is to determine whether that failure resulted in actual prejudice that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503, at 6, 2013 WL 6327549 (per curiam); Greer v. State, 2012 Ark. 158, 2012 WL 1223760 (per curiam) (citing Woody v. State, 2009 Ark. 413, 2009 WL 2971758 (per curiam)). Where a petitioner alleges ineffective assistance of counsel based on 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. Stevenson v. State, 2013 Ark. 302, 2013 WL 3946082 (per curiam) (citing Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam)). The decision to call or not to call a particular witness is largely a matter of professional judgment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Id. (citing Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000)). In order to demonstrate prejudice, ^appellant must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Greer, 2012 Ark. 158,2012 WL 1223760.
The circuit court rejected Smith’s contention that his trial counsel was ineffective for failing to call Frye as a witness or for failing to execute an affidavit in compliance with section 16-63^02. Smith cites to no authority for the proposition that the failure to file an affidavit in compliance with section 16-63-402 constitutes ineffective assistance. Aside from that, he has failed to show that he would have been able to produce Frye during his trial had the motion for continuance been granted. The circuit court concluded that trial counsel had made a diligent effort to locate Frye to no avail. We cannot say that finding is clearly erroneous as Smith as failed to provide any information otherwise. Finally,. Smith has not shown that Frye’s testimony would have been admissible nor has he demonstrated that, had Frye testified, the outcome of his trial would have been different. Thus, under our standards, we cannot say the circuit court clearly erred in refusing to grant relief on this point.
Smith’s final point on appeal is that trial counsel was ineffective for failing to challenge the search warrant on the grounds that the warrant was executed as a “no knock” warrant prior to 6:00 a.m. During Smith’s trial, his counsel filed a motion challenging the search warrant on several grounds, most of which focused on ownership and control of the car in which the controlled substances were found. The motion was denied and that denial was affirmed on appeal. Smith I, 2011 Ark. App. 110, 381 S.W.3d 144.
During the Rule 37 hearing, Smith’s trial counsel testified that he did not recall Smith 110advising him of the time and manner of entry. He further testified that the warrant was executed at 6:03 a.m. and that state presented testimony at trial that the officers knocked before entering. In .contrast, Smith' testified that he informed his trial counsel that the warrant was executed at 5:45 a.m. and that the officers did not knock prior to entry. The circuit court concluded that it was not required to accept Smith’s testimony concerning what he told his trial counsel. Moreover, the circuit court determined that “had [Smith] given the same testimony on these points at the suppression hearing, this court would not have been required to accept [Smith’s] version of events over the return of the warrant which showed service after 6:00 a.m. and the state’s testimony that the officers knocked before entering.”
Counsel’s decision whether to challenge the admission of evidence seized pursuant to the execution of an arrest warrant is cognizable in Rule 37 proceedings. Moten, 2013 Ark. 503, at 4, 2013 WL 6327549. A petitioner who makes such a challenge must demonstrate that a motion to suppress would have been meritorious had counsel pursued it. Id. Here, the circuit court stated that it would not have been required to accept Smith’s version of events surrounding the search warrant given that the State presented contradictory evidence concerning the time and manner of the warrant’s execution. Credibility determinations are within the province of the trial court. Williams v. State, 2011 Ark. 489, at 13, 385 S.W.3d 228, 237 On appeal, Smith has failed to show that the motion to suppress would have been meritorious; therefore, the circuit court did not clearly err by denying relief on this point.
| uWe find that the circuit court did not clearly err in denying Smith’s Rule 37 petition and we affirm.
Affirmed.
. The mandate from his direct appeal issued on March 1, 2011. Rule 37.2 requires that a petition under the Rule be filed within sixty days of the appellate mandate. In this case, the sixty-day time period elapsed on Saturday, April 30, 2011. The first business day was May 2, 2011; therefore, Smith’s petition was timely. In addition, Smith verified his petition on April 18, 2011. Verification of petitions is required by Rule 37.1(c).
. Although Smith’s Rule 37 petition included the claim that "[tjrial [cjounsel failed to make any argument as to the sufficiency of the evidence necessary to convict the defendant for unauthorized use of property to support his motion for directed verdict,” that argument is not developed before this court. Claims raised below but not argued on appeal are considered abandoned. Hayes v. State, 2011 Ark. 327, at 2, 383 S.W.3d 824, 827. | [
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ROBERT J. GLADWIN, Chief Judge
|,Appellant Michael Trucks appeals the June 10, 2014 decree of divorce entered by the White County Circuit Court in this divorce action, specifically the award of alimony in the amount of $600 per month for a period of thirty years. He argues that the circuit court abused its discretion in awarding alimony to appellee Laureen G. Trucks. We affirm.
Appellant and appellee were married for nearly sixteen years, although appellant admittedly spent significant periods of time away from the marital home due to his battle with drug and/or alcohol addiction. At some point, after several years of marriage, appellant moved to Arkansas and eventually filed for divorce. Appellee filed an answer and counterclaim for divorce against appellant, seeking alimony because of the marital debt she was currently paying, namely, an alleged promissory note (“note”) the parties executed to appellee’s mother in the amount of $100,000. The note was the only evidence of this alleged 12debt, as appellee neither had her mother present to testify as to the alleged mortgage statement accompanying the note nor entered any bank statements into evidence showing the payments on the alleged note. Further, the note omitted the amount to be repaid and a maturity date, and appellant testified that he had neither seen the note nor the alleged mortgage statement and found that his signature was not the signature affixed to the note.
At the conclusion of the brief trial, the circuit court granted appellee a divorce based on the fault grounds of habitual drunkenness, drug abuse, and adultery. Despite the conflicting evidence regarding the parties’ financial circumstances, the circuit court awarded appellee alimony in the amount of $600 per month for a period of thirty years, citing a financial need, and noting that appellant, despite his income level, had the ability to pay such award. The decree was filed on June 10, 2014, and appellant filed a timely notice of appeal on June 17, 2014.
Appellate courts in Arkansas review divorce cases de novo on the record. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on-appeal absent an abuse of discretion. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147; Ark.Code Ann. § 9-12-312(a)(1) (Supp. 2013).
The circuit court is vested with great discretion regarding alimony; it is not set upon a mathematical formula because the need for flexibility outweighs the need for relative certainty. Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411. Appellate courts will |adefer to the superior position of the circuit court to judge the credibility of witnesses. Taylor, supra.
Division of marital property and the award of alimony are complementary devices that the trial court may employ to make the dissolution of a marriage financially equitable. Yancy v. Yancy, 2014 Ark. App. 256, 2014 WL 1758917. Generally, the primary consideration in a decision to award alimony is the relationship between the needs of the payee spouse and the payor spouse’s ability to pay. Id. An award of alimony lies within the. discretion of the trial court and will not be reversed absent an abuse of discretion. Id.
There are secondary factors that may also be considered. Id. In Jones v. Jones, 2014 Ark. App. 614, 447 S.W.3d 599, this court reiterated the factors set out in Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), wherein our supreme court ech oed twelve other factors the courts should look to in determining whether alimony should be awarded and the amount to be awarded. The factors include: (1) the parties’ financial circumstances; (2) the parties’ past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each party; (6) the amount of income of each party that is spendable; (7) the earning ability and capacity to earn of the parties; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition of the homestead; (10) the respective health and medical needs of the parties; (11) duration of the marriage; and (12) the amount of child support.
| ¿Appellant contends that this award of alimony was punitive in nature, wholly unsupported by the evidence, and in violation of the most basic concepts related to the award of alimony. He claims that the circuit court clearly abused its discretion in both the amount and duration of its award and that these errors include: (1) finding he had the ability to pay alimony; (2) determining that appellee had a financial need for alimony; (3) factoring his marital misconduct into an award of alimony; (4) considering the alleged mortgage taken out by appellee’s mother despite appellee’s failure to present sufficient evidence; (5) failing to consider appellee’s additional rental income received from her tenant; (6) miscalculating the length of time for which alimony was awarded related to the payment of the alleged note; and (7) relying on appellee’s inconsistencies in her pleadings, testimony, and exhibits.
As to the primary factors, appellant’s ability to pay and appellee’s need for alimony, the circuit court was faced with a wealth of conflicting testimony. It is undisputed that appellant never submitted an affidavit of financial means, and testimony was not developed regarding his monthly expenses. He appears to have utilized appellee’s affidavit of financial means as a baseline for speculating as to his possible monthly expenses. He also disputes her need for alimony, in particular questioning the note on the marital home that appellee was awarded. The testimony regarding that note and associated documents is, at best, contradictory. We reiterate that we give due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Walls v. Walls, 2014 Ark. App. 729, 452 S.W.3d 119.
|fiAppellant argues that the circuit court ignored all of the twelve factors discussed in Jones, fixing the amount of alimony solely focused on appellant’s ability to pay and appellee’s financial need. He urges that the circuit court’s analysis is supported by little to no evidence, or conversely, that the evidence directly contradicts the circuit court’s ultimate conclusions. The Boyles court did not make it mandatory for circuit courts to consider the enumerated factors, and other courts have said that these factors are factors that a court “may consider” in determining whether to award alimony. See Butler v. Butler, 2014 Ark. App. 507, 443 S.W.3d 585; Mitchell v. Bass, 2009 Ark. App. 640, 2009 WL 3153264; Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). Although the circuit court did not discuss the enumerated factors in its order, each party argues that the evidence presented at trial tips the scales in his or her favor with respect to almost every factor. As our supreme court noted recently in Brave v. Brave, 2014 Ark. 175, at 10, 433 S.W.3d 227, 233, “[a]n award of alimony is a question that ad dresses itself to the sound discretion of the trial court. This court has held that the trial court can make an award of alimony that is reasonable under the circumstances.” (Internal citations omitted.) Although the facts of this case would arguably support the denial of an award of alimony if that had occurred, it is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. See Whitworth v. Whit-worth, 2009 Ark. App.' 410, 319 S.W.3d 269. It is instead our duty to determine if the circuit court abused its discretion in making its findings regarding the award of alimony. Here, we hold that the circuit court has not abused its discretion.
| (Appellant also claims that the circuit court’s decision to grant appellee alimony for a period of thirty years is clearly erroneous and an abuse of discretion. Citing the duration of the alleged mortgage as the reasoning for granting appellee support for thirty years, appellant urges that the circuit court wholly overlooked that the mortgage was taken out in 2007, which puts the remainder of the mortgage balance being paid over twenty-three years.
Appellee notes that in his analysis for awarding alimony for thirty years, the circuit court did say that period is how long appellee would be indebted. Appellee acknowledges that the circuit court may have been referring to appellee’s testimony about the thirty-year mortgage to her mother and also admits that the evidence indicates that it was obtained in 2007, meaning that as of the final hearing there would have been approximately twenty-three years left to pay on the mortgage. We do not know if the circuit court awarded thirty years’ alimony instead of twenty-three because the evidence showed that appellant did not contribute much financially before or after the mortgage was obtained and that appellee had been pay-' ing the mortgage by herself for the first seven years. Appellee maintains that if this were the case, it would not have been an abuse of discretion. Additionally, if appellant had made this argument before the circuit court, instead of for the first time on appeal, the circuit court could have clarified his intent and rationale behind the ruling.
The circuit court indicated that if appellant returned to court at a later date and was able to show that appellee was not paying the debt in question or could prove that she is no longer responsible for those debts, the term of alimony could be reduced. Modification of an award of alimony must be based on a change of circumstances of the parties. Bettis v. |7Bettis, 100 Ark.App. 295, 267 S.W.3d 646 (2007). The burden of showing a change of circumstances is always on the party seeking the change in the amount of alimony. Id. If appellant subsequently were to petition the circuit court in the event appellee’s mother dies and her house is sold and the mortgage is satisfied, the circuit court may reduce the term. Another example would be if appellant could later prove that the debt was paid in full in twenty-three years instead of thirty years, then the circuit court may reduce the term. The circuit court has the authority to set the duration of the award of alimony, subject to the parties' ability to petition for a subsequent modification based on a material change of circumstances, and his award here did not constitute an abuse of discretion.
Finally, although appellant contends that the alimony award operates as a punitive sanction, there is nothing in the record before us to indicate that the alimony award was meant to be punitive. The record does indicate that appellant admit ted his addiction to drugs and alcohol and his time away in and out of drug rehabilitation for significant periods of time. Appellant testified that the parties spent a great deal of money during the marriage on his drug and alcohol addiction and that the parties also spent substantial marital funds on his legal expenses. There is evidence that appellant’s addictions also played a role in how the parties allocated their marital and individual assets and debts, including the marital residence and retirement accounts. While there are acknowledgments by appellant that he had multiple girlfriends and a fiancee during the marriage, upon whom he spent marital funds, what is not found in the record is any indication that the circuit court awarded alimony to appellee because appellant was a “terrible husband.” And although there is no indication that |sthe circuit court considered appellant’s bad acts, he could have. While, ordinarily, fault or marital misconduct is not a factor in an award of alimony, it will be considered when it meaningfully relates to need or ability to pay. Dykman v. Dykman, 98 Ark.App. 145, 253 S.W.3d 23 (2007). WHiile evidence in the record indicates that the probability that appellant’s addictions and other detrimental behavior placed the parties in financial hardship that likely carried on past the date of divorce, there is simply no evidence to support the idea that the circuit court’s alimony award was meant to be punitive.
Affirmed.
Glover and Hoofman, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
11 Jordan Arie Schneider appeals from his convictions on charges of posses-’ sion of a controlled substance and possession of drug paraphernalia. He argues that the circuit court erred by denying his motion to suppress evidence seized following a stop of his vehicle that he claimed was illegal. Our court of appeals affirmed the decision of the circuit court. Schneider v. State, 2014 Ark. App. 711, 452 S.W.3d 601. Appellant 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. Fowler v. State, 2010 Ark. 431, 371 S.W.3d 677. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e) (2014). We reverse and remand the circuit court’s sentencing order and vacate the opinion of the court of appeals.
Appellant pled guilty to charges of possession of a controlled substance and possession]^ drug paraphernalia in the Benton County District Court. The charges arose from a traffic stop of appellant’s vehicle on November 24, 2011. Appellant appealed to the Benton County Circuit Court. In the circuit court, appellant filed a motion to suppress evidence seized by police, alleging that the stop of his vehicle was unlawful.
At the suppression hearing, Dustin Wiens with the Rogers Police Department testified that he was at the intersection of North Second Street and Wood Street at approximately 1:00 a.m. on November 24, 2011, when appellant drove past him. He pulled behind appellant and ran the vehicle’s license plate. The license plate returned as being registered to a blue 1992 Chevrolet Camaro. Officer Wiens testified that he noticed that the car was red when it passed him and saw that the bumper was black while he was following it. Based solely on the color discrepancy, Officer Wiens stopped the vehicle and made contact with appellant. He testified that he performed the stop in order to investigate further, check the vehicle-identification number, and determine whether the vehicle had been painted or was stolen. Appellant introduced photographs of the vehicle that Officer Wiens described as showing a car with a red door, black bumper, and other parts that were painted blue. Officer Wiens denied seeing any blue on the car before he stopped it. He repeated on cross-examination that the col- or of the vehicle was the only reason that he initiated the traffic stop.
The trial court denied appellant’s motion to suppress. Appellant subsequently en tered a conditional plea of guilty to the charges of possession of a controlled substance and ^possession of drug paraphernalia pursuant to Arkansas Rule of Criminal Procedure 24.3. He was sentenced to ten days in jail, with seven days suspended, and assessed fines, fees, and court costs on the charge of possession of a controlled substance. He was sentenced to ten days in jail, with all ten days suspended, and assessed fines, fees, and costs on the charge of possession of drug paraphernalia. This appeal followed.
When reviewing a circuit court’s denial of a motion to suppress evidence, the appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the circuit court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.
Appellant argues that a discrepancy between the color of a vehicle and the color listed on the registration, standing alone, is insufficient to give rise to a reasonable suspicion of criminal activity necessary to justify the stop of his vehicle by Officer Wiens. Pursuant to |4 Arkansas Rule of Criminal Procedure 3.1 (2014),
[а] law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger or forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
“Reasonable suspicion” is defined as a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Ark. R.Crim. P. 2.1 (2014). Whether there is reasonable suspicion depends upon whether, under the totality of the circumstances, the police have “specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Menne v. State, 2012 Ark. 37, at 6, 386 S.W.3d 451, 455 (quoting Malone v. State, 364 Ark. 256, 263, 217 S.W.3d 810, 814 (2005)).
In making his argument, appellant urges this court to adopt the reasoning utilized by a district of the Florida Court of Appeals in Van Teamer v. State, 108 So.3d 664 (Fla.App.Dist.2013). In Van Teamer, the Florida appellate court held that a discrepancy between the color of a vehicle and the color listed on the registration, standing alone, does not justify a traffic stop. Appellant also directs this court to the decision in United States v. Uribe, 709 F.3d 646 (7th Cir.2013), in which the United States Court of Appeals for the Seventh Circuit held that no reasonable suspicion of vehicle theft attached to a completely lawful color discrepancy in the absence of any evidence suggesting otherwise.
Ijn arguing that the decision of the circuit court should be affirmed because the color discrepancy gave rise to a reasonable suspicion of criminal activity, the State relies on the decision of the Georgia Court of Appeals in Andrews v. State, 289 Ga.App. 679, 658 S.E.2d 126 (2008) as well as the decision of the Indiana Court of Appeals in Smith v. State, 713 N.E.2d 338 (Ind.App.1999). In both Andrews and Smith, the appellate court held that a color discrepancy gave rise to a reasonable suspicion of criminal activity sufficient to justify a stop of the vehicle because the discrepancy was an indication that the vehicle may have been retagged or stolen.
We conclude that the decisions in Van Teamer and Uribe are more persuasive given the facts presented in this case. In Van Teamer, the court noted that there was no requirement under Florida law for a registration to be updated to reflect a change in a vehicle’s color. In affirming the court of appeals decision, the Florida Supreme Court stated that “the color discrepancy here is not ‘inherently suspicious’ or ‘unusual’ enough or so ‘out of the ordinary’ as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV.” State v. Teamer, 151 So.3d 421, 427 (Fla.2014).
Arkansas, like Florida, has no requirement that the owner of a vehicle change the registration to reflect the color of a vehicle in the event it is painted or the color otherwise altered. It is also not prohibited in Arkansas to replace portions of a vehicle’s body with new | fibody pieces that do not match the vehicle’s original color. The innocence of the conduct, however, is not determinative, as the United States Supreme Court has stated, in connection with a reasonable-suspicion inquiry, that “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts'.” United States v. Sokolow, 490 U.S. 1, 10,109 S.Ct. 1581,104 L.Ed.2d 1 (1989).
Here, although Officer Wiens testified that he would conduct a stop in the event of a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his experience, car thieves would change the color of a vehicle after it had been stolen or that a discrepancy in color was indicative of any type of criminal conduct. There was, therefore, no evidence before the circuit court that a color discrepancy was indicative of any criminal activity that would possibly allow otherwise innocent behavior to give rise to a reasonable suspicion of criminal activity. See Uribe, 709 F.3d at 652 (stating that the government had provided no information on the correlation between repainted vehicles and stolen ones).
It is clear, based on the testimony at the suppression hearing, that Officer Wiens was acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the time he initiated the traffic stop. Thus, the stop was not based on a reasonable suspicion that appellant was engaged in criminal activity, and the circuit court erred by denying appellant’s motion to suppress. As a result, we reverse and remand the sentencing order of the circuit 17court.
Reversed and remanded; court of appeals opinion vacated.
. 1 With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review an adverse determination of a pretrial motion to suppress seized evidence or a custodial statement. Ark. R.Crim. P. 24.3(b)(i) (2014).
. The State asserts that Officer Wiens had probable cause to stop the vehicle pursuant to Arkansas Code Annotated section 27-14-306(a) (Repl. 2008), which prohibits the display on a vehicle of a registration plate not issued for the vehicle. However, a change in color need not be reflected on the registration linked to the plate. Also, Officer Wiens did not testify that he believed that a violation of section 27-14-306(a) had occurred when he stopped the vehicle. Therefore, Officer Wiens did not have probable cause to stop appellant's vehicle. | [
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RITA W. GRUBER, Judge.
| iThis is a breach-of-contract case filed by appellee, Van Horn Construction, Inc., a general contractor, against appellant, Keith Capps Landscaping & Excavation, Inc., a subcontractor. After a bench trial, the • circuit court found that Capps had breached the parties’ subcontract by failing to perform the work in accordance with the contract’s plans and specifications and ultimately by refusing to complete the contract. The court awarded Van Horn $245,682 in damages, plus costs and attorneys’ fees. On appeal, Capps argues that the trial court erred in finding that it breached the subcontract and in awarding an amount in damages that is in excess of the actual “reasonable damages.” We find no error and affirm the judgment of the circuit court.
In September 2010, Van Horn was awarded the bid as general contractor for the expansion of the Searcy water-treatment plant. In connection with that project, Van Horn |2sought subcontractor bids for the demolition and earthwork from various firms, including Capps. Capps submitted two bids, which Van Horn rejected because it determined that the amount of fill was overestimated in one bid and underestimated in the other. Van Horn accepted Capps’s third proposal, and the parties executed a subcontract on January 3, 2011, in which Capps agreed to “[f]ur-nish all required labor, equipment, and materials to complete the dirtwork for the Searcy Water Treatment Plant Expansion per plans, specifications, and addenda by Garver Engineers.” The contract included, among other tasks, excavation and fill for the sedimentation basin. In exchange for this work, Van Horn agreed to' pay Capps $131,700.
There was some confusion in the beginning of the project about the type of fill material Capps could use for the sedimentation basin. In this project, the basin was to be set on fill material that was placed in layers, or lifts. Each lift was designed to be six to eight inches high and had to be compacted and tested for proper compaction and moisture content before another lift was placed on top of it. The specifications required that “class 7” material be used, but Keith Capps, the owner of Capps, testified that he understood from Van Horn when he submitted bid proposals that he could use shale, which is not a class 7 material and which is a considerably cheaper material. Van Horn eventually convinced Wendell Williams, who was the project-construction observer for the project engineer, and the geotechnical engineering firm, Grubbs Engineering, to allow Capps to use material that it submitted for ¡^testing from its “borrow pit,” which was originally brought to the site for this purpose. The borrow pit included shale.
However, when Capps began work on the sedimentation basin, numerous tests' of its lifts failed—generally due either to the moisture content being too high or the shale not being sufficiently broken up, or processed—and Capps was required to constantly rework the lifts and reprocess the material, causing considerably more work and expense than it had anticipated. The project manager for Van Horn, Mark Hurley, testified that when shale is “dug out,” it comes out in large chunks. The specifications called for the material to be processed to a certain gradation to be properly compacted. Thus, Capps was required to process the material before placing it to meet the moisture and compaction requirements. In addition, Mr. Hurley testified that Capps was attempting to place the fill in layers that were too thick rather than placing it in six-to-nine-inch layers as the specifications required.
Although Mr. Hurley testified that the plans and specifications were always available for Capps’s review on the company website and indeed had been brought to a meeting with Capps before Capps submitted his third proposal, Keith Capps testified that he did not see the plans and specifications for the project until the day Van Horn picked up Keith’s copy of the signed subcontract. Keith signed the contract, which included specifications regarding the lifts and fill material, without reviewing the specifications. He testified that he was instructed by Van Horn before the contract was signed to use shale for the fill material because it was cheaper than other fill material. Keith also testified that it was his understanding that he would be allowed to stockpile material next to the fill site but that after the project began, he was |4required to stockpile material 250 yards away and use a loader and dump truck to move it. He said that he had not anticipated this extra work and expense. He said that he told Van Horn that it was impossible to accomplish the lifts with the material he was using, but he was unable to get the matter resolved. He attempted to get Van Horn to agree to a change order to help with the processing or use a different material, but according to Keith, Van Horn refused. Mr. Hurley testified that Van Horn did offer to split the cost of “B stone” that did not require as much processing to use as fill, but Capps declined the offer and quit the project.
Van Horn notified Capps pursuant to Article 10 of the subcontract that Capps had forty-eight hours to return to the job or Van Horn would terminate the contract. Article 10 states in pertinent part as follows:
If Subcontractor persistently or repeatedly fails or neglects to carry out the work or otherwise to perform in accordance with the Subcontract, Contractor may, at its option and after forty-eight (48) hours notice to Subcontractor ... (ii) declare this Subcontract terminated, take possession of all materials, tools and appliances belonging to Subcontractor whether on the job site or stored elsewhere pursuant to agreement, and either complete the work itself or contract with other parties for the completion thereof.
When Capps did not return to finish the project, Van Horn completed the job by hiring other subcontractors, obtaining fill material and rental equipment, and performing some of the work itself. Van Horn submitted an itemized list of the costs to complete the project and the liquidated damages Van Horn was required to pay to the owner for the delay in completing the contract.
Van Horn then brought a breaeh-of-con-tract claim against Capps. Capps counterclaimed for breach of contract, essentially alleging that Van Horn breached the 1 .^contract by refusing to issue a change order for the change in fill material. After a hearing, the circuit court found that Capps breached the contract by “failing to perform the work in accordance with the plans and specifications and ultimately refused to complete its contract.” It also determined that all prior negotiations and proposals of Capps merged into the subcontract. The court noted that the cost to Van Horn to complete the work was $222,852, giving Capps credit for the remaining contract balance for work not performed by Capps. Finally, the circuit court found that Capps’s failure to perform the work delayed the project, causing Van Horn to incur damages pursuant to Van Horn’s contract with the city of Searcy. Van Horn-negotiated the liquidated-damages amount it would have owed the city for the delay from $141,000 ($1,000 per day of delay) to $96,541.94 (the cost of the excess onsite engineering services paid by the city due to the delay). The court allocated $28,280 of the $96,541.94 to Capps for a -total award of damages of $245,632.
In order to prove a breach-of-contract claim, one must prove “the existence of an agreement, breach of the agreement, and resulting damages.” Schwyhart v. J.B. Hunt, LLC, 2014 Ark. App. 324, at 11, 436 S.W.3d 173, 180. In civil bench trials, the standard of review on appeal is not whether there is substantial evidence to support the findings of the court, but whether the court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Select Concrete Co. v. Cane Creek Concrete Servs., Inc., 2014 Ark. App. 161, at 4, 2014 WL 988963. 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. Where the issue is one of law, our review is de novo. Id.
| (¡For its first point on appeal, Capps contends that the circuit court clearly erred in finding that it breached the subcontract. Capps argues that the facts demonstrate that it could not perform the job as promised with the fill material it was using. Capps argues that, due to the wet weather, it was not the best time to make lifts with shale, that the contract was silent regarding the material to be used, and that Van Horn knew it was not possible to comply with the terms of the subcontract using the material Capps had. Capps also argues that Van Horn “committed fraud in the procurement of the subcontract.”
First, Capps did not plead or argue fraud in the procurement to the circuit court, and we will not consider an argument that was raised for the first time on appeal. Davis v. Davis, 2013 Ark. App. 180, at 5, 2013 WL 1007249, Capps’s additional arguments merely reargue facts regarding the insufficiency of the fill material that it had in its borrow pit and that Van Horn led it to believe would be acceptable. Contrary to Keith’s testimony and Capps’s argument, the circuit court believed the testimony of Van Horn’s witnesses that Keith was provided the plans and specifications before he signed the contract. Disputed facts and determinations of credibility are within the province of the fact-finder. Bryant v. Osborn, 2014 Ark. 143, at 2, 2014 WL 1344402. In any case, although the specifications provided that class 7 material was required (shale was not a class 7 material), Capps was ultimately allowed to use its shale material in spite of the contract’s requirements otherwise. The specifications also clearly provided guidelines about the lifts. After our review of the evidence, we are not left with the definite and firm conviction that a mistake was committed. City of Jacksonville v. Nixon, 2014 Ark. App. 485, at 3, 442 S.W.3d 906, 909-10.
17For its second point on appeal, Capps argues that the circuit court erred in awarding Van Horn a judgment in excess of “actual reasonable damages.” Spe cifically, Capps contends that the amount Van Horn spent to complete the dirt work was over two-and-a-half times higher than the total amount to be paid to Capps for the same work. Capps then claims that, although the cost to pay other contractors should have been higher, it should not have been that much higher.
The measure of damages in this case is the amount Van Horn incurred to complete the work less the amount it would have paid Capps if no breach had occurred. MDH Builders, Inc. v. Nabholz Constr. Corp., 70 Ark.App. 284, 292, 17 S.W.3d 97, 102 (2000). Van Horn submitted an itemized spreadsheet detailing the breakdown of costs it incurred to complete the dirt work. Mr. Hurley testified for Van Horn that most of the contractors it called to help complete the project did not want to get involved in the middle of a project that was already underway and therefore that Van Horn had to do some of the work itself. In order to do this, Van Horn had to rent equipment, purchase material (which it did not have in a borrow pit as did Capps), and use its own employees, who were not “the best people at doing dirt work, so then it probably cost a little bit more.” He also testified that the contractors who agreed to help charged more based on time and material than they would have charged if they had contracted to perform the whole job from the start. Capps did not present any testimony or evidence demonstrating that these expenses were excessive. We hold that the circuit court’s damages award was not clearly erroneous.
Affirmed.
WALMSLEY and HARRISON, JJ., agree.
. According to the parties, a sedimentation basin is a large concrete structure used to hold the fresh water being treated to allow the natural particles to settle to the bottom before the water is transported to a filter. | [
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BILL H. WALMSLEY, Judge.
| Appellant Ralph Shane Calaway appeals from the Union County Circuit Court’s denial of his motion to modify an order of protection involving appellee, Tara Fallen Crotty. Calaway argues that the trial court clearly erred in denying the modification. We affirm.
In an order of protection entered on November 2, 2012, Calaway was ordered to stay away from Crotty, her two minor children, and other members of her family. The order reflects that Calaway had a past dating relationship with Crotty, that he possessed a firearm, and that he had a history of extreme violence. The order was effective for a period of three years. Neither party appealed from the order.
Arkansas Code Annotated section 9-15-209 (Repl.2009) provides that any order of protection issued by the circuit court pursuant to a petition filed as authorized in this chapter may be modified upon application of either party, notice to all parties, and a hearing thereon.
On December 10, 2013, Calaway filed a motion for modification seeking to remove certain language from the order of protection and to limit its duration to six months, which is what Crotty had initially requested. Calaway further sought to include a provision permitting him to possess firearms and to hunt because Crotty did not allege physical abuse or a threat of physical abuse involving a firearm. Crotty opposed Calaway’s motion and pointed out that he did not appeal from the order and that circumstances had not changed.
At a hearing held on February 4, 2018, Crotty conceded that Calaway had not violated the November 2012 order of protection. Crotty testified, however, that she wanted the order of protection to continue because “[t]hat’s the only thing that has worked so far, me asking him to stay away didn’t work. My dad telling him to stay away didn’t work. This is the only thing that’s worked.” Crotty stated that prohibiting Calaway from possessing firearms was important because “[firearms] are such a big part of who he is. [Calaway] has a temper.” Crotty expressed her fear that Calaway would use a firearm against her and added that she did not think Cala-way was “going to let this go.” Crotty further testified, “Do I think he’s going to get me back, oh, yeah, I do.”
Calaway testified that he had never committed any criminal act against Crotty or her | ¡.children and that he had never threatened them with a firearm or otherwise. Calaway testified that, since the November 2012 order of protection was entered, he had seen Crotty at Bugs, Bikes, and Bands, an event held downtown, and that he had walked to the other side of the property to avoid her and left the event when he saw her a second time. Calaway testified that he collected old guns and had a hunting camp. He stated that he owned twenty to thirty guns but had sold them to his brother who lived in another state. Calaway conceded that the guns were kept at the home of a friend in Union County. Calaway testified that he had been in trouble with the law before, including several convictions in district court for assault, but he pointed out that those convictions had occurred approximately twenty years ago.
A transcript of the earlier hearing that led to the original order of protection was made a part of the record. At the hearing held on November 2, 2012, Crotty testified that she and Calaway had dated off and on for more than two years and that the relationship had ended in March or April 2011. Crotty testified to specific events that occurred from December 2011 through September 2012. Although Crotty repeatedly asked Calaway not to contact her or her children, he continued to contact them. Crotty stated that Calaway “barged in” at her home when she was there and at other times when she was not at home. On one occasion, Crotty was undressed when Calaway entered her home without permission. Calaway often left gifts for her and the children but was told that his gifts were not wanted. On one occasion, Crotty and her children were returning videos when Calaway blocked her car in the parking lot at the video store. One morning, Crotty and her children were awakened by Calaway screaming for Crotty in the kitchen. On another occasion, Crotty spotted Calaway 14walking around in her backyard and looking through a sliding-glass door, and she heard, him rattling a doorknob. Calaway came to Crotty’s home another time, knocked and attempted to enter, but Crotty ran to the door and locked the deadbolt. Crotty further testified that she and Cala-way had “very heated” arguments, during which Crotty thought Calaway might hit her.
According to Crotty, Calaway was obsessed with her children. Calaway followed Crotty when she took her children to school and once approached her in the pick-up line and told her that he would leave everybody alone if she would let him see the children. Calaway came to her home one day when the children were outside playing and pleaded with them not to tell their mother that he was there. Crotty stated that her children were afraid that Calaway would “do something.” Crotty testified that Calaway had told her that he would “come after” her and her family if she would not let him see the children.
Crotty’s neighbor, Andrea Kiddy, testified that she had heard Crotty begging Calaway to leave her home and asking him not to leave gifts. Kiddy heard Calaway say that he “[had not] even started yet with the family.” Kiddy, whose children attended school with Crotty’s children, saw Calaway following Crotty to school.
Calaway testified that he had felt like a parent to Crotty’s children and that he had “a hard time getting over [the children].” Calaway denied ever hitting Crotty or the children or threatening to hurt them.
In granting the original order of protection, the judge stated,
[T]here is sufficient testimony and the opinion of the Court is that Mr. Shane Calaway has continuously and persistently acted in such a way as to willfully torment, mentally |fitorment, this Plaintiff by intimidation, by threat, by stalking and involving her children that would give her reason to believe that his conduct is so bizarre and so intrusive that her children might well be ⅛ danger as well as herself.
Following the February 4, 2014 hearing, the trial court denied Calaway’s motion to modify the order of protection. The trial court noted that Crotty continued to fear Calaway and that Crotty thought the order of protection was still necessary. Moreover, the trial court found that Calaway had not shown any changed circumstances and had not offered any evidence to give the court cause to modify the original order.
The standard of review upon appeal from a bench trial is whether the trial court’s findings are clearly erroneous or clearly against a preponderance of the evidence. Oates v. Oates, 2010 Ark. App. 345, 377 S.W.3d 394. 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 credibility of witnesses are within the province of the fact-finder. Id.
Calaway argues that there was no dispute that he had never harmed or threatened to harm Crotty or her children and contends that harassment, once per month over six months, does not constitute “domestic abuse.” Calaway argues that the evidence does not support a finding that his conduct toward Crotty created in her a fear of imminent domestic abuse at the present time. Calaway further argues that there was no reason to continue the order of | ^protection for the entire three-year period because he had stayed away from Crotty and her children.
To the extent that Calaway attempts to relitigate the original order of protection, his failure to appeal from that order prevents us from reviewing it. See, e.g., Price v. Griffin, 2012 Ark. App. 205, 2012 WL 835836. While we do not address the decision underlying the original order, the facts are relevant to determining whether changed circumstances warranted modification of the order. Taylor v. Zanone Props., 342 Ark. 465, 30 S.W.3d 74 (2000) (trial court may modify injunction if it finds that circumstances underlying injunction have changed). The evidence supports a finding that Crotty continued to fear that Calaway would harm her or her children. The trial court clearly found credible Crott/s testimony that Calaway had a temper and was known to seek revenge. The trial court could reasonably conclude that Calaway still posed a threat to Crotty; therefore, we hold that the trial court did not clearly err in refusing to modify the order of protection.
Affirmed.
HARRISON and GRUBER, JJ., agree.
. In his notice of appeal, Calaway asserts that he is appealing from the trial court’s order entered on December 6, 2012; however, that amended order was held null and void in Calaway v. Crotty, 2013 Ark. App. 637, 2013 WL 5964490. It is obvious from Calaway's argument that Calaway appeals from the order denying his motion for modification entered on February 5, 2014. His notice of appeal was timely filed as to that order on February 18, 2014.
. Calaway requested that the trial court omit certain phrases, including that the victims were in immediate and present danger of domestic abuse and that he had a history of extreme violence.
."Domestic abuse” means physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members. Ark.Code Ann. § 9—15—103(2)(A) (Repl. 2009). "Family or household members” includes persons who in the past have been in a dating relationship. Ark.Code Ann. §. 9—15— 103(3).
. The trial court was authorized to grant an order of protection lasting from ninety days to ten years, and the duration is a matter of discretion for the trial court. Ark.Code Ann. § 9—15—205(b) (Supp.2013).
. The Domestic Abuse Act of 1991, codified at Ark.Code Ann. § 9-15-101 (Repl.2009), provides that the relief contemplated under this chapter is injunctive and therefore equitable in nature. | [
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WAYMOND M. BROWN, Judge.
| Appellant appeals from the circuit court’s judgment entered on January 6, 2014. Following the court’s denial of his motion to suppress, pursuant to Arkansas Rule of Criminal Procedure 24.3(b), appellant entered a conditional plea of no contest to theft by receiving and possession of a firearm by certain persons. He was concurrently sentenced as á habitual offender on both charges to ten years’ imprisonment in the Arkansas Department of Correction. On appeal, appellant’s sole argument is that the circuit court erred in denying his motion to suppress. We affirm.'
On January 7, 2013, Detective Ron Parsons, Detective Corporal Gary Robertson, and two patrol deputies, all of the Saline County Sherriff s Department, went to appellant’s home to complete a “knock and talk” after learning of a report that appellant was involved in thefts of “utility-type copper” from electrical poles along Highway 35 through the city of Benton and into Grant County. They used a drive which encircled [ 2appellant’s home to access the property, parking on the side of the home. There was no fence around the home. Upon exiting their vehicle, Detective Parsons saw a burned-out black spot in the backyard about fifteen to twenty yards away that still contained burned copper. In the area around the burned-out black spot, he saw five-to six-feet sections of ground wire, typically used by utility companies, stacked on top of each other in piles.
Both Detective Parsons and Corporal Robertson then heard voices in a “shop building” nearby. They made contact with two persons at the shop building, thinking one of them was appellant. Both ran but were apprehended. Neither was appellant.
They then made contact with Jacqueline Prevatt, appellant’s girlfriend. She advised that appellant was not at the home. Corporal Robertson did a sweep of the premises to ensure that appellant was not there. He exited the premises upon find ing that appellant was not there. The officers then began their investigation. Having also seen ground wire on the ground near the burned-out black spot, Detective Parsons went over to further inspect it. From that place, he saw a boat that contained tools in plain view that he immediately recognized as stolen utility-contractor tools due to the inspection stickers on them.
IsPursuant to an affidavit detailing the evidence observed on January 7, 2018, a warrant was issued on February 15, 2013. Detective Parsons participated in the execution of that warrant on the same date. The search pursuant to that warrant uncovered varying amounts of copper in various forms, various utility tools, and a .22 caliber revolver.
On April 8, 2013, appellant was charged by criminal information, as a habitual offender, with theft by receiving and possession of a firearm by certain persons. On August 8, 2013, appellant filed a motion to suppress physical evidence obtained on January 7, 2013. On October 10, 2013, appellant filed a motion to suppress physical evidence obtained on February 15, 2013. By letter opinion filed November 4, 2013, the circuit court denied both of appellant’s motions to suppress.
Appellant entered a conditional plea of no contest as a habitual offender to theft by receiving and possession of a firearm by certain persons, reserving his right to appeal the court’s denial of his motion to suppress. He was concurrently sentenced as a habitual offender on both charges to ten years’ imprisonment in the Arkansas Department of Correction. This timely appeal followed.
Appellant argues that officers violated his constitutional rights to be free from unlawful search or seizure under the Fourth Amendment and Article 2, section 15 of the Arkansas Constitution, when they entered the curtilage of, his home without a warrant or a justifiable exception to a warrant on January 7, 2013. He asserts that all evidence obtained from the January 7, 2013 search, and all evidence obtained from the February 15, |42013 search made pursuant to a warrant obtained based on information learned during the allegedly unlawful January 7, 2013 search, should have been suppressed. Accordingly, he asserts that the circuit court erred in denying his motion to suppress. The State argues that the officers were in an area in which appellant did not have a reásonable expectation of privacy when they seized items that were in plain view and evidenced criminal conduct; therefore, the circuit court did not err in denying appellant’s motion to suppress.
I. Standard of Review
In reviewing the denial of a motion to suppress evidence, this court con ducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. The appellate court defers to the superior position of the circuit judge to pass upon the credibility of witnesses. It will reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence.
II. Curtilage
' [4] Appellant argues that Detective Parsons and Corporal Robertson were unlawfully in the curtilage of his home and would not have seen the wires had they not been in a | ¿place where they were not supposed to be. The Fourth Amendment of the United States Constitution and Article 2, section 15 of the Arkansas Constitution identically protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and the touchstone of analysis under both is whether a person has a reasonable expectation of privacy in the area entered or searched. One’s dwelling and curtilage have consistently been held to be areas that may normally be considered free from government intrusion. The curtilage of a dwelling-house has been defined by this court as a space necessary and convenient, habitually used for family purposes and for the carrying on of domestic employment.
Four factors identify the extent of the privacy expectation in the curtilage of a residence: the proximity of the area claimed to be curtilage to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by. While dwellings and their curtilage generally are protected, an expectation of privacy in driveways and walkways, which are commonly used by visitors |Bto approach dwellings, generally is not considered reasonable. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection.
Detective Parsons testified that appellant’s home was encircled by a “well-used,” unpaved drive. Prevatt agreed that the unpaved area was a circle drive. There was no fence, gate, or other access-restricting structure at any place around the residence.
Furthermore, with regard to the officers “choice” to go to the back door, Detective Parsons testified that he had been to appellant’s residence “at least a couple of times previously” in his official capacity and that he had “always had someone go to the front but [they] never got a response from the front[,]” so they then “always went to the back.” Prevatt testified that “most of the time [the residents of the home entered] the house from the back door[,]” though “[p]eople use both doors.” If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so. Accordingly, while the circle drive was within the curtilage of the home, we hold that appellant had no' reasonable expectation of privacy in the circle drive.
|7III. Plain View
As a general rule, all searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the State to establish an exception to the warrant requirement. The observation of evidence in plain view is not a search, and therefore the resulting seizure is not the result of an unreasonable search.
Under the plain-view doctrine, “[w]hen police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime.” The plain-view doctrine is applicable if the officer has a lawful right of access to the object and if the incriminating nature of the object is readily 18apparent. Significantly, even if the police did not inadvertently discover the object, the seizure does not violate the Fourth Amendment.
Detective Parsons and Corporal Robertson went out to appellant’s residence to speak with him about his being named as being involved with copper thefts. From the position at which Detective Parsons and Corporal Robertson legally parked, Detective Parsons testified that he could see “pieces of copper in a burnt area” and “piles” of “five to six-foot long” sections of utility-type electrical wiring stacked nearby. He said the piles were about “15-20 yards away[.]” Detective Parsons testified to prior knowledge that the stolen electrical wires had been cut in “approximately five to six-foot sections.” He also testified that he had investigated copper thefts “many times[,]” estimating that he had worked “80-100 cases” in five years. Based on Detective Parsons’ history of investigating copper theft cases, the presence of copper wires in the burned-out black spot, and the open storage of copper wires that had lengths equal to the lengths of the copper wires known to police to have been stolen from electricity poles, we find that he had probable cause to believe the copper was evidence in the copper thefts he was investigating.
IV. Conclusion
The officers in the case were lawfully in an area of the curtilage of appellant’s home wherein he had no reasonable expectation of privacy when they saw utility grade copper wiring which was readily apparent to them as evidence of the criminal conduct they were | (Investigating. Based on a review of the totality of the circumstances, the circuit court did not err in denying appellant’s August 8, 2013 motion to suppress the physical evidence obtained on the day of the knock and talk. Because we hold that the circuit court properly denied appellant’s August 8, 2013 motion to suppress, we hold that the court did not clearly err in denying appellant’s October 10, 2013 motion to suppress the evidence obtained on February 15, 2013, where the evidence obtained on January 7, 2013, served as the basis for the warrant, the February 15, 2013 execution of which resulted in the additional evidence.
Affirmed.
WHITEAKER and HIXSON, JJ„ agree.
. There was contradictory testimony with regard to whether Prevatt gave Corporal Rob ertson permission to enter the home. We note that State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), deals with the issue of consent during a "knock and talk." Appellant summarily states that "[n]one of the officers presented a warrant nor did they get consent to search the premises.” Beyond this, no further argument regarding consent of supporting authority is made. Accordingly, the issue of consent is not before this court.
. Detective Parson called First Electric, which sent out a representative who identified some of the stolen tools as belonging to First Electric and some as being stolen from one of their subcontractors, Highliners Construction. After photographing the stolen tools, Detective Parsons returned the stolen tools to their owners.
. Appellant was also charged with use or possession of paraphernalia to manufacture, etc., methamphetamine/cocaine; however, that charge was nolle pressed.
. King v. State, 2014 Ark. App. 81, at 8, 432 S.W.3d 127, 132 (citing Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190).
. Id.
. Id.
. Percefull v. State, 2011 Ark. App. 378, at 6, 383 S.W.3d 905, 909 (citing McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003)).
. McDonald v. State, 354 Ark. 216, 222, 119 S.W.3d 41, 45 (2003) (citing Sanders v. State, 264 Ark. 433, 572 S.W.2d 397 (1978)).
. Gaylord, v. State, 1 Ark.App. 106, 109, 613 S.W.2d 409, 411 (1981).
. Percefull, 2011 Ark. App. 378, at 5, 383 S.W.3d at 909 (citing United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)).
. Id.
. McDonald, supra (citing Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003) (citing United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976))).
. There was some incomplete fencing at the rear of the nearby shop building, but it did not restrict access.
. Lancaster v. State, 81 Ark.App. 427, 432, 105 S.W.3d 365, 368 (2003) (Burdyshaw v. State, 69 Ark.App. 243, at 248, 10 S.W.3d 918, at 921 (quoting Oregon v. Corbett, 15 Or.App. 470, 516 P.2d 487, 490 (1973))).
. McDonald v. State, 92 Ark.App. 1, at 3, 210 S.W.3d 915, 917 (2005) (citing Kirk v. State, 38 Ark.App. 159, 832 S.W.2d 271 (1992)).
. Id. (citing Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); and Izell v. State, 75 Ark.App. 377, 58 S.W.3d 400 (2001)).
. Magness v. State, 2012 Ark. App. 609, at 12, 424 S.W.3d 395, 403 (citing Washington v. State, 42 Ark.App. 188, 192, 856 S.W.2d 631, 633 (1993)).
. Newton v. State, 366 Ark. 587, 590, 237 S.W.3d 451, 453 (2006) (citing Fultz v. State, 333 Ark. 586, 593, 972 S.W.2d 222, 224-25 (1998) (citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987))).
. Id. (citing 237 S.W.3d at 453 (citing Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997))).
. Fultz v. State, 333 Ark. 586, 593, 972 S.W.2d 222, 225 (1998) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). | [
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RITA W. GRUBER, Judge
|, On July 24, 2012, Karen Shepard (now appellee) filed a complaint for absolute di vorce from Richard White (now appellant) and, on the same date, propounded requests for admission on him. Shepard’s complaint asserted that she was a Missouri resident, and White was a resident of Carroll County, Arkansas, and had been a resident there for more than sixty days prior to the filing of her complaint; that she and White were married on March 13, 2009; that the marriage was not a covenant marriage; that the parties separated on September 5, 2011, after which time they continuously lived separate and apart from each other without cohabitation; that there were property rights and debt responsibilities to be adjudicated; and that during the course of the marriage, White had inflicted such personal indignities upon her so as to entitle her to an absolute divorce pursuant to Ark.Code Ann. § 9-12-301(3). White timely answered the complaint, admitting that the parties had ^separated and remained apart, denying her allegation regarding his infliction of indignities, and stating that he would not contest the divorce. White counterclaimed for absolute divorce on the ground of general indignities, and he responded to her requests for admission.
On September 19, 2013, Shepard filed both an “Amended and Restated Complaint for Divorce from Bed and Board” and a motion for summary judgment. In her amended complaint, she alleged that White had failed to comply with the parties’ agreement that had resulted from mediation:
On January 5, 2013, Plaintiff and Defendant entered into a mediation agreement, denominated a “Memorandum of Understanding” (the “Property Settlement Agreement”), whereby Defendant agreed to refinance the mortgage on the home located at 400 Paradise Mountain Road, Eureka Springs, AR 72631 (the “Home”) in his name only within 2 months from the execution of the Property Settlement Agreement and agreed to quitclaim his interest in Tracts 1, 2, 8,' 9, 10, 11 and 12, Paradise Mountain Estates, Carroll County, Arkansas to Plaintiff.
The amended complaint also stated that the parties would quitclaim to each other nonmarital real properties in Missouri. Shepard requested that she be awarded a decree of divorce from bed and board, that White be ordered to specifically perform the mediation agreement, and that she be granted other relief.
In her motion for summary judgment, Shepard repeated her allegation that White had refused to comply with the parties’ mediation agreement, and she further asserted that Missouri property she had acquired prior to their marriage was non-marital. Exhibits attached to her motion included the memorandum of understanding and a letter from counsel to the Firefighters Pension System of Kansas City, Missouri, stating that under Arkansas and Missouri law, a “limited divorce” would not affect Shepard’s eligibility to receive a surviving Uspouse’s benefits. Other exhibits attached to the motion were the parties’ financial affidavits; White’s affidavit of September 17, 2013, restating her allegations and attesting to White’s Arkansas residency and the parties’ continuous separation without cohabitation since September 5, 2011; and a September 18, 2013 affidavit of Larry Brookbank, attesting to White’s Arkansas residency and the parties’ continuous separation without cohabitation since September 5, 2011. Shepard prayed that she be awarded a divorce from bed and board from White; that he be ordered to specifically perform the mediation agreement; that he be ordered to pay the monthly mortgage, insurance and tax payments on the home; that he be ordered to pay all taxes due on all of the property in Paradise Mountain Estates, Carroll County, Arkansas, until such time as he quitclaims Tracts 1, 2, 8, 9, 10, 11, and 12 to her; and that he be ordered to quitclaim her nonmarital real property in Missouri to her.
White responded to the motion for summary judgment and opposed it. He responded that the parties had indeed signed the mediation agreement requiring him to refinance in his name, whereby Shepard’s name could be removed, and that he had attempted to refinance, but the financial institutions he had approached had declined to refinance in his name alone. He asserted that the parties had subsequently reached a novation whereby he would attempt to obtain life insurance in order to protect her (as a mortgage obligor) in the event of his death, but the premiums that were quoted to him were prohibitively expensive.
White also answered the amended complaint — admitting the extended period of separation, admitting that the parties had signed the memorandum, but claiming that they 14had entered into novations or substituted agreements that he would obtain life insurance in lieu of refinancing the Eureka. Springs home. He claimed that he “subsequently agreed to split the real estate” with Shepard, who then reneged on that agreement. He denied Shepard’s allegation that he had refused to comply with the mediation agreement, pleading that he had attempted the refinancing but that financial institutions had refused to refinance solely in his name. He denied that the parties should quitclaim to each other their nonmarital real properties in Missouri, pleading that Shepard’s Missouri home was marital property or debt because it was partially refinanced or paid for by refinancing the mortgage on the Eureka Springs home. He raised affirmative defenses of novation or substituted contracts, failure to state a claim upon which relief can be granted, and failure of condition precedent or frustration of purpose. He requested that Shepard’s amended complaint be dismissed. She replied to his response, denying that she had agreed to modify the memorandum of understanding, denying that she had refused to comply with the mediation agreement, and asserting that it was White who had refused to comply.
On November 1, 2018, the circuit court conducted a hearing on Shepard’s motion for summary judgment. Shepard argued that the affidavits she had filed presented uncontroverted facts supporting entitlement to specific performance of the mediation agreement. She asked that she be granted a divorce from bed and board so that the parties would continue to own the home.
The circuit court entered a fill-in-the-blank docket order on November 1, 2013, granting Shepard the “relief requested” in her summary-judgment motion, denying White’s | -.counterclaim, and stating that Shepard was to provide an order within ten business days. On November 14, 2013, White filed a notice of appeal.
In a detailed order, entered on November 22, 2013, the court granted Shepard summary judgment for a divorce from bed and board and for a division of property based on the parties’ mediation agreement; the order also dismissed Richard White’s counterclaim for absolute divorce. The court found that the facts of the case were settled based upon the allegations of the pleadings and supporting affidavits. Included in these findings were that White had refused to comply .with the parties’ mediation agreement of property settlement, certain real property was Shepard’s nonmarital property, the parties had continuously lived separate and apart without cohabitation since September 5, 2011, and
if [Shepard] is granted a divorce from bed and board rather than an absolute divorce, [she] will be entitled to collect a death benefit upon [White’s] death, thereby providing her with funds with which she can maintain the mortgage, taxes, and insurance on the home until she is able to sell the home.
White was ordered to quitclaim Tracts 1, 2, 8, 9, 10, 11, and 12; Paradise Mountain Estates; to quitclaim the Missouri real property; to pay 2012 real property taxes on Tracts 1, 2, 3. and 6-14 in Paradise Mountain Estates; to pay monthly mortgage, insurance, and taxes on Tracts 4, 5, 17, and 19, “and the improvements .thereon (the ‘Home’) and on Tracts 3, 6, 7, 13, and 14 “until he refinances the Home in his own name or until his death”; and, upon refinancing the Home in his own name, to quitclaim the Home and Tracts 3, 6, 7, 13, and 14 to Shepard. Finally, the order prohibited White from suing Shepard for absolute divorce until refinancing the home in his own name, and his counterclaim was deniéd. White timely filed a supplemental notice of appeal from this order.
| fiWhite raises two points on appeal, contending that the circuit court erred (1) in denying and dismissing his complaint for divorce and prohibiting him from suing for divorce, and (2) in granting summary judgment to'Shepard on all her claims. We reverse in part on the first point, and we reverse on the second point.
I. White’s Complaint for Absolute Divorce
White contends that the circuit court erred as a matter of law by unjustifiably denying and dismissing his counterclaim for absolute divorce and by ordering him not to sue for divorce. He asserts that he never abandoned his counterclaim, and he notes Shepard’s failure to deny his claim of general indignities as well as her own pleadings and affidavits regarding the parties’ separation. The statutory grounds for divorce include:
(b) The circuit court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:
(3) When either party shall:
(C) Offer such indignities to the person of the other as shall render his or her condition intolerable;
....; [and]
(5) When husband and wife have lived separate and apart from each other, for eighteen (18) continuous months without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one (1) party or by the mutual consent of both parties or due to the fault of either party or both parties[.]
Ark.Code Ann. § 9-12-301 (Repl. 2009) (emphasis added). We agree with White, and Shepard does not dispute, that the pleadings and affidavits in this case support the statutory [7grounds of eighteen months’ continuous separation without cohabitation. When this ground is proven, the language of section 9-12-301 (b)(5) mandates that “the eourt shall grant an absolute decree of divorce at the suit of either party.”
We hold that the trial court erred as a matter of law by denying .White’s counterclaim for absolute divorce in light of the parties’ agreement that they had lived separate and apart for eighteen months without cohabitation. In light of our ruling, we need not address the second part of White’s argument: that the trial court also erred when it prevented White from suing for divorce until after refinancing the home. We reverse and remand to the circuit court for further proceedings consistent with this opinion.
II. The Granting of Shepard’s Motion for Summary Judgment
Summary judgment is governed by Ark. R. Civ. P. 56:
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof....
(c) Motion and Proceedings Thereon.
(1) The motion shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, depositions, answers to interrogatories and admissions on file, and affidavits. The adverse party shall serve a response and supporting materials, if any, within 21 days after the motion is served. The moving party may serve a reply and supporting materials within 14 days after the response is served. For good cause shown, the court may by order reduce or enlarge the foregoing time periods. No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise....
(2) The judgment sought shall be rendered forthwith if the pleadings, Isdepositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion.
(e) Form of Affidavits; Further Testimony; Defense Required.... [A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Summary judgment should be granted only when -it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. York v. York, 2010 Ark. App. 343, 374 S.W.3d 827. Once the moving party has established a prima facie entitlement to summary judg: ment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Payne v. France, 373 Ark. 175, 282 S.W.3d 760 (2008). The reviewing court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party; and focusing our review not only on the pleadings but also on the affidavits and documents filed by the parties. See id.
We hold that, because there remained disputed issues of material fact in this ease, the trial court erred as a matter of law in granting Shepard’s motion for summary judgment. In her supporting affidavit, Shepard stated that White had refused to comply with the memorandum of understanding or mediation agreement. White stated in his competing |flaffidavit that he was not willfully in default of the memorandum of understanding and had attempted in good faith to comply with it. He stated that he had attempted to renegotiate the loan in order to remove Shepard as an obligor, that financial institutions refused him, that the parties then agreed that he would attempt to obtain a life-insurance policy in lieu of refinancing, that attempts to obtain life insurance also failed, and that his subsequent attempts to divide the property with Shepard also failed. Likewise, in his answer to the amended complaint, White denied the allegation that he had refused to comply with the agreement. Clearly, the issue of whether White refused to comply with the mediation was a disputed issue.
There also remained competing divorce complaints in this case, making summary judgment improper. White’s request for absolute divorce was in direct contravention of Shepard’s amended complaint for bed and board.
Further, there was inadequate evidence in the record to support the relief given to Shepard. The grant of summary judgment, by dividing other marital property, went far beyond ordering specific performance of the mediation agreement. See Ark. Code Ann. § 912-315 (requiring that all marital property be distributed one-half to each party “unless the court finds such a division to be inequitable,” in which event “the court shall make some other division that the court deems equitable” after taking into consideration ten statutory factors).
| inClearly, without evidence of whether property and debts were marital or non-marital and without a hearing on the statutory factors to be considered for an inequitable division of marital property, the division of property and debt by an order of summary judgment was both an abuse of discretion and an error of law. We reverse the grant of summary judgment regarding the division of property, and we remand for further proceedings consistent with this decision.
Reversed and remanded.
Whiteaker and Brown, JJ., agree.
. Although not determinative in our decision, we wish to express our concern regarding the use of summary judgment in a contested pre-decree situation such as in the present case. | [
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LARRY D. VAUGHT, Judge
|,Appellants Ashley Terry Basham and Charles Basham appeal from the termination of their parental rights to their child, D.B., pursuant to Arkansas Code Annotated section 9-27-341 (Supp. 2013). Ashley argues on appeal that (1) the trial court erred in failing to determine whether she was indigent and appoint counsel and (2) insufficient evidence supports the trial court’s termination decision. Charles’s counsel has filed a no-merit brief and. a motion to withdraw, alleging that there are no meritorious grounds for his appeal. We reverse the order terminating Ashley’s parental rights and remand. We affirm the order terminating Charles’s parental rights and grant his counsel’s motion to withdraw.
On June 28, 2013, the Arkansas Department of Human Services (DHS) took emergency custody of four-year-old D.B. after the Arkansas State Police executed a search warrant on a |2home in which Charles and D.B. were living. (Ashley was incarcerated in Texas). While executing the warrant, the state police observed that D.B. and another child were present in the home where methamphetamine and a firearm were discovered. Additionally, the home was in disarray, there was limited food, and there was no working toilet. Charles was arrested after admitting methamphetamine use and testing positive for methamphetamine and opiates. He has remained incarcerated throughout the pendency of this case.
D.B. was subsequently adjudicated dependent-neglected, and the goal of the case was reunification. Because D.B.’s parents were incarcerated, the case plan ordered them to complete substance-abuse counseling and remain drug free upon their release. Charles was also ordered to complete parenting classes upon his release, and he was permitted to have supervised visitation.
A review order entered on November 11, 2013, provided that Charles was complying with the case plan by availing .himself of services while incarcerated. The review order also stated that Ashley, who had been released and attended the review hearing, had obtained employment, was-living with her mother, and had submitted to drug testing, which was negative.
A February 14, 2014 review order stated that Ashley had not complied with the case plan and that her whereabouts were unknown and that Charles had been complying with the case plan by availing himself of services while incarcerated. The trial court ordered a home study on Ashley’s mother, who lived in Texas.
|sOn May 7, 2014, a permanency-planning hearing was held, at which time the goal of the case was changed to adoption based on the parties’ incarceration. The trial court ordered that home studies be performed on relatives who had notified DHS of an interest in D.B. Thereafter, DHS filed a petition for the termination of Ashley’s and Charles’s parental rights. Four statutory grounds were pled against the parents: (1) Ark.Code Ann. § 9-27-341(b)(3)(B)(i) (a) — that a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent; (2) Ark.Code Ann. § 9 — 27—341(b)(3)(B)(ii) (a) — the juvenile has lived outside the home of the parent for a period of twelve months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile; (3) Ark.Code Ann.' § 9-27-341(b)(3)(B)(vii) (a) — that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subse quent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent; and (4) Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) — the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life.
|4A July 30, 2014 termination hearing was held, after which the trial court terminated Ashley’s and Charles’s parental rights. The court found that DHS proved all four grounds alleged in the petition and that termination was in D.B.’s best interest. The termination order was entered August 6, 2014, and these appeals followed.
I. Ashley’s Appeal
Ashley, who was incarcerated during most of these proceedings, attended the termination hearing via telephone and represented herself. Before the hearing began, the trial court read into evidence a letter Ashley had written to the court in response to DHS’s petition to terminate her parental rights to D.B. In pertinent part, the letter stated
I am writing concerning my son, D.B. On this day of June 9th, 2014. I would like to appeal the [] accusations made against me and the well being of my son. Court has summonsed me to a termination of my parental rights on July the 16th, 2014.... I am aware that I have a right to a jury trial and an attorney, which I would now like to take action upon.
After the trial court read the letter into the record, counsel for Charles stated
Your Honor, I don’t mean to be contrary, but obviously, [Ashley] was requesting an attorney in her answer, and no attorney has been appointed for her, and I think she is entitled to an attorney if she asks for one, and she’s indigent, which she would obviously be indigent since she’s been incarcerated. So, I don’t feel like that we can go forward now without, and I don’t know that it’s my place to bring that up, but it just struck me when you were reading the letter that she had requested an attorney, but she does not have one.
Counsel for DHS responded that the hearing could proceed against Charles. The trial court then asked Ashley if she was ready to proceed, and Ashley answered “yes.” The trial court stated, “All right. We will proceed, and you [Ashley] continue to listen to the witnesses and the testimony.” The termination hearing proceeded.
|fiAshley’s first argument on appeal is that the trial court erred as a matter of law when it failed to determine her indigency status and appoint an attorney to represent her upon her request for counsel for the termination proceedings. In Arkansas, the right to appointed counsel in the termination-of-parental-rights proceedings is absolute. “All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if-the court makes a finding that the parent is indigent and counsel is requested by the parent.” Ark.Code Ann. § 9-27-316(h)(1)(D) (Supp. 2013); see also Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 325, 42 S.W.3d 397, 401-02 (2001) (holding that the State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings).
Despite having the right to counsel at the termination hearing and her specific request for counsel to represent her at that hearing, the facts are undisputed that Ashley was denied this right. Because the trial court failed to determine whether she was indigent and/or appoint counsel for her, it violated section 9-27-316(h)(l)(D) as a matter of law. Accordingly, we reverse the order terminating Ashley’s parental rights to D.B. and remand for proceedings consistent with this opinion.
|(JI. Charles’s No-Merit Appeal
Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Charles’s attorney has filed a no-merit brief, asserting that there are no issues that would support a meritorious appeal, and a motion to withdraw as counsel. Counsel argues there were only two adverse rulings — the denial of Charles’s motion for a continuance at the beginning of the termination hearing and the termination decision.
At the beginning of the termination hearing, counsel for Charles orally moved for a continuance arguing that home studies on the paternal grandparents, Dwayne Basham and Betty Blake Basham, were ordered by the trial court but not conducted. Charles’s counsel also argued that there was no permanency-planning order in the record; therefore, the petition to terminate parental rights was void because DHS had not been authorized to proceed with termination. DHS argued that the motion for continuance was not timely and that a permanency-planning hearing was held in May 2014, authorizing termination, but an order was not entered at that time. Finally, DHS argued that it had complied with the trial court’s order to conduct the home studies.
|7In support of the motion for continuance, Dwayne testified about his extensive criminal history, which included six convictions. He added that he had been released from prison five months prior to the hearing and would be on parole for twenty years. He added that he had been incarcerated nearly all of D.B.’s life. Dwayne said that Betty had never met D.B.
Dorothy Jackson, a DHS representative, testified that when the home study on Dwayne was ordered, the process was stopped because Dwayne did not pass his background check due to his criminal history. Jackson said that a home study was requested on Betty, who was -living in Texas, but it could not be completed there because she moved from Texas when she married Dwayne.
After being married two weeks, Dwayne and Betty met with Jackson and requested a home study on them as a married couple. Jackson initiated the study on the Bas-hams and learned that the couple had not spoken in twenty-five years and that Betty had never met D.B. Due to Dwayne’s criminal history and the lack of a relationship between Betty and D.B., Jackson determined that a home study would not be approved for the couple.
On this evidence, the trial court denied Charles’s motion for continuance, finding that it was untimely. . The trial court also found that there had been a permanency-planning hearing authorizing termination. Finally, the trial court found that DHS had complied with the order 1sto perform home studies and that the evidence showed that Dwayne’s criminal history and the couple’s lack of a relationship with D.B. would have prevented approval.
Counsel argues that the trial court’s denial of the motion for continuance is not an issue that would support a meritorious appeal. A trial court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, at 23, 316 S.W.3d 261, 273. The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Id., 316 S.W.3d at 273. Additionally, the appellant must show prejudice from the denial of a motion for continuance. Id., 816 S.W.3d at 273.
We hold that the trial court did not abuse its discretion in denying the motion for continuance; therefore, we agree with counsel that there is no merit to an appeal of this adverse ruling. First, the motion was not timely. The home studies were ordered in May 2014, yet Charles’s first complaint about them not being performed was at the termination hearing on July 30, 2014. At that time, DHS had already made arrangements to transport Charles from prison, made Ashley (who was in prison) available by telephone, and subpoenaed witnesses. Second, the parties’ counsel agreed that the permanency-planning hearing was held and that at that hearing the trial court had authorized DHS to proceed with termination. Third, the evidence showed that DHS had complied with the order to perform home studies. Jackson requested and started home studies on Dwayne and Betty individually; and as a couple; however, Jackson testified that they would not be approved due to Dwayne’s criminal history and the lack of a | flbond/relationship between them and D.B. Additionally, Charles did not prove prejudice because he failed to present evidence that additional time would have resulted in an approved home study on Betty and Dwayne.
The second adverse ruling was the trial court’s termination decision. A trial court’s order terminating parental rights must be based upon findings proved by clear and convincing evidence. Sims v. Ark. Dep’t of Human Servs., 2015 Ark. App. 137, at 3, 2015 WL 831178- (citing Ark. Code Ann. § 9-27-341(b)(3) (Supp.2013); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)). 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. Sims, 2015 Ark. App. 137, at 3, 2015 WL 831178. On appeal, the appellate court will not reverse the trial court’s ruling unless its findings 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. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
Pursuant to Ark.Code Ann. § 9-27-341(b)(3), an order terminating parental rights shall be based upon a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights must also be based on a showing |inof clear and convincing evidence as to one or more of the grounds for termination listed in Ark. Code Ann. § 9-27-341(b)(3)(B);
The trial court’s order in this case found clear and convincing evidence to support all four grounds alleged in the termination petition that were pertinent to Charles. However, as counsel notes, only one ground must be proved to support termination, and counsel focuses the discussion on the evidence supporting the ground set forth in section 9-27-341(b)(8)(B)(viii) — the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life.
D.B. was removed from Charles’s custody based on the fact that he failed to provide a safe and stable home for D.B. and that there was no legal caretaker for D.B. after Charles’s arrest. Thereafter, Charles was sentenced to imprisonment for twenty years. The trial court found that this sentence constituted a substantial period of D.B.’s life in light of the fact that D.B. was four years old.
We agree that there could be no meritorious argument raised on appeal with respect to this ground for termination. The trial court’s decision that Charles’s incarceration encompassed a substantial period of his child’s life fell within the bounds of our case law. At one end of the spectrum are cases like Thompson v. Arkansas Department of Human Services, 59 Ark. App. 141, 954 S.W.2d 292 (1997) (forty-year prison sentence, children ages ten and nine) and Moore v. Arkansas Department of Human Services, 333 Ark. 288, 291, 969 S.W.2d 186 (1998) (twenty-eight-year prison sentence, child one year old). The other end of the spectrum is Hill v. Arkansas Department of Human Services, 2012 Ark. App. 108, 389 S.W.3d 72 (three-year prison sentence, child two years |1Told; court terminated parent’s rights and reasoned that by time the parent was released from prison the child would have spent “half of her life” in foster care). In the middle is Fields v. Arkansas Department of Human Services, 104 Ark.App. 37, 289 S.W.3d 134 (2008) (ten-year concurrent prison sentences, child age ten months). Therefore, we hold that the trial court did not clearly err in finding that Charles’s twenty-year prison sentence was a substantial portion of D.B.’s life.
In addition, there is no clear error in trial court’s finding that termination was in the best interest of D.B. The court found that there was a risk of harm to D.B. if he was returned to Charles based on Charles’s past conduct and his current incarceration. The trial court further found that D.B. was adoptable based on the testimony of an adoption specialist.
Based on our review of the record and the brief submitted, we conclude that counsel has complied with Ark. Sup. Ct. R. 6-9(i) and agree that Charles’s appeal is without merit. Therefore, we affirm the termination order as to Charles’s parental rights and grant his counsel’s motion to withdraw.
Reversed and remanded as to Ashley Terry Basham; affirmed as to Charles Basham; motion to withdraw granted.
Hoofman and Brown, JJ., agree.
. Ashley had returned to prison.
. The home study on Ashley's mother was not approved.
. DHS and the attorney ad litem concede this issue on appeal.
. Ashley also argues on appeal that the trial court clearly erred in finding that DHS proved that termination was in D.B.'s best interest and that statutory grounds supported the termination. We do not reach these arguments based on our holding on her first point on appeal.
-. A copy of the no-merit brief was delivered to Charles. He did not file pro se points in response.
. Dwayne and Betty were not married when Charles was bom. They married approximately six weeks prior to the termination hearing.
. Dwayne’s Arkansas Criminal History Report reflected that he was convicted of arson, theft of property (twice), reckless driving, robbery, and residential burglary.
. The trial court ordered that the permanency-planning order be entered nunc pro tunc, and that order was filed on August 6, 2014.
. In reaching this holding, we acknowledge Charles's testimony that he could be paroled for good behavior in 2017. However, we look at the length of the prison sentence, not the potential release date, when reviewing whether this statutory ground was met. Moses v. Ark. Dep't of Human Servs., 2014 Ark. App. 466, at 5, 441 S.W.3d 54, 57 (citing Bowman v. Ark. Dep't of Human Servs., 2012 Ark. App. 477, 2012 WL 4009596). | [
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LARRY D. VAUGHT, Judge
| Appellant Steven Lynn Williams appeals the Garland County Circuit Court’s order holding him in contempt for failure to pay child support. Appellant argues that the circuit court erred in failing to dismiss appellee Arkansas Office of Child Support Enforcement’s (OCSE) motion for citation and erred in finding him in contempt. We reverse the circuit court’s contempt order.
On March 18, 2014, OCSE filed a motion for citation against Williams, alleging that on May 23, 2012, a Florida child-support order against Williams had been properly registered in Arkansas, the Florida order had an accrued arrearage in the amount of $45,298.01, Williams had willfully refused to comply with the order, and Williams should be held in contempt. OCSE sought an order jailing Williams for contempt and an order of immediate withholding for current support, arrearages, and health-care insurance coverage. Williams, | ^appearing pro se, filed a motion to dismiss on May 2, 2014. On June 6, 2014, he filed an answer. On June 16, 2014, he filed a motion for judgment on the pleadings. Williams requested a hearing on his motions to dismiss, which was set for June 25, 2014, and was later reset for July 23, 2014. The order made clear that the July 23, 2014 hearing would be on Williams’s motions to dismiss.
On July 23, 2014, the parties appeared for the hearing. At the outset, OCSE stated that the underlying motion for contempt was ripe to be heard that day. Williams objected, stating that the hearing was set on his motions to dismiss. The court overruled his objection, stating that “this is the final hearing today.” Williams made it clear that he did not have witnesses to present on the underlying contempt charge because he was prepared to discuss only his motions.
OCSE called Williams as its own witness. He admitted that there was a Florida child-support judgment against him. He admitted that he had attempted to appeal the registration of the Florida judgment in Arkansas but that appeal had been dismissed. However, when asked if he had made any payments on the Florida judgment, Williams did not answer. Instead, he repeatedly stated that OCSE had the burden of proving nonpayment. After two unsuccessful attempts to get Williams to admit that he had made no payments toward the Florida judgment since it had been registered in Arkansas, the attorney for OCSE simply told the court that he had not. The attorney stated that the judgment was for $45,298.01 [¡¡when it was registered in 2012 and that “Florida is a state that charges interest so I’m sure it’s up to seventy-five grand or more by now.”
The court then gave Williams an opportunity to present his case. He first argued that the only issue before the court at the hearing that day was his motions to dismiss. The court disagreed, saying they were there on his motions and the underlying contempt issue. When Williams attempted to argue that the case should be dismissed because OCSE had failed to state a claim, the court responded, “And I denied that motion.”
The court then found Williams in contempt for failure to pay child support and ordered that he be held in custody until he paid $5,000 toward the arrearage. As he was being taken from the courtroom, Williams attempted to argue that there was no evidence of willfulness, but was escorted out by the bailiff. On August 1, 2014, the court entered an order holding Williams in contempt. The order stated that Williams’s motions were denied. It found that Williams had not made a payment since the Florida judgment was registered in Arkansas in May 2012, that he was in willful and wanton contempt, and that he should be jailed until he paid $5,000. Williams filed a timely notice of appeal.
In reviewing the circuit court’s denial of Williams’s motions to dismiss,
[W]e treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief.
Ark. Dep’t of Envtl. Quality v. Oil Producers of Ark., 2009 Ark. 297, at 5, 318 S.W.3d 570, 572-73 (quoting Ark. Tech Univ. v. Link, 341 Ark. 495, 501,17 S.W.3d 809, 812 (2000) (internal citations omitted) (alteration in the original)). We will not overturn the denial of a motion to Udismiss absent a finding of abuse of discretion. S. Coll, of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005).
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 449, 156 S.W.3d 228, 235 (2004). In order to establish contempt, there must be willful disobedience of a valid order of a court. Ivy v. Keith, 351 Ark. 269, 279, 92 S.W.3d 671, 677 (2002).
Arkansas law distinguishes between direct and indirect contempt. Ark. Const., art. 7, § 26; Ark.Code Ann. § 16-10-108 (Repl. 1999); Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000); Davis v. Merritt, 252 Ark. 659, 480 S.W.2d 924 (1972). Direct contempt is a contemptuous act committed within the immediate presence of the court, while indirect contempt occurs outside the presence of the court and must be proved by evidence. Merritt, 252 Ark. at 670, 480 S.W.2d at 930. Williams’s alleged failure to pay child support occurred outside the presence of the court, making this an issue of indirect contempt.
Williams argues that the circuit court erred in denying his motions to dismiss. Williams argues that OCSE failed to state a claim, made only conclusory allegations, and failed to plead sufficient facts. In reviewing a circuit court’s decision on a motion to dismiss, |swe treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, at 4-5, 372 S.W.3d 324, 329-30. In testing the. sufficiency of a complaint on a motion to dismiss, all reason able inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id., 372 S.W.3d at 329 — 30. However, Arkansas is a fact-pleading state, and a complaint must state facts, not mere conclusions, in order to satisfy the requirements of Rule 8 of the Arkansas Rules of Civil Procedure. Doe v. Weiss, 2010 Ark. 150, at 3, 2010 WL 1253216.
We find no abuse of discretion as to the circuit court’s decision to deny Williams’s motions to dismiss. Our review reveals that OCSE’s motion for citation stated sufficient facts that, when taken as true, could establish contempt. OCSE alleged the existence of a properly registered child-support order, the accrual of an arrearage, and willful refusal to comply with the order. Williams is mistaken in asserting that these allegations were con-clusory.
However, as to the circuit court’s order holding Williams in contempt, the record reveals that OCSE presented no evidence of noncompliance with the Florida judgment. The attorney’s unsworn statements to the court that Williams had not paid were neither testimony nor evidence. As discussed above, evidence is required to prove indirect contempt, which occurs outside the presence of the court. Ivy, 351 Ark. at 280-81, 92 S.W.3d at 678. As there was no such evidence before the circuit court as to Williams’s alleged failure to pay child support, the court’s order holding Williams in contempt was clearly against the preponderance of the evidence. Accordingly, we reverse the contempt order.
lfiReversed.
Abramson and Kinard, JJ., agree.
. Williams’s motion to dismiss and his motion for judgment on the pleadings presented the same arguments for dismissal and have been addressed collectively by both the lower court and the parties on appeal. Accordingly, we refer to both as Williams’s motions to dismiss.
. Criminal .contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders, while civil contempt protects the rights of the parties by compelling compliance with court orders. Omni Holding & Dev. Corp., 356 Ark. at 449, 156 S.W.3d at 235. Criminal contempt punishes while civil contempt coerces. Applegate v. Applegate, 101 Ark. App. 289, 275 S.W.3d 682 (2008); Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985). Therefore, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). Here, it is clear that the court's order holding Williams in contempt for failure to pay child support and ordering that he be jailed until he paid $5,000 toward the arrearage constituted civil rather than criminal contempt. | [
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PER CURIAM
_[jln 2014, appellant Anthony Walker entered a negotiated plea of guilty in the Crittenden County Circuit Court to two counts of robbery. He was sentenced as a habitual offender to consecutive sentences of 300 months’ imprisonment for the first count and 300 months’ suspended imposition of sentence for the second count. On July 16, 2014, appellant filed a pro se petition for writ of habeas corpus in the Lee County Circuit Court, the county in which he was imprisbned. The circuit court denied the petition, and appellant has lodged an appeal of that order in this court. We reverse and remand.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacked jurisdiction over the cause. Tucker v. Hobbs, 2014 Ark. 449, 2014 WL 5497320 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner in a habeas-corpus proceeding to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner who does not proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity or the lack of jurisdiction by the trial court and must additionally make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16 — 112— 103(a)(1) (Repl. 2006); Murphy v. State, 2013 Ark. 155, 2013 WL 1504318 (per curiam). Proceedings for the writ are not intended to require an extensive review of the record of the trial proceedings, and the court’s inquiry into the validity of the judgment is limited to the face of the commitment order. Murphy, 2013 Ark. 155, 2013 WL 1504318.
On appeal, appellant argues that his sentence is illegal because the trial court ordered the sentence of 300 months’ imprisonment and the 300-month suspended imposition of sentence to run consecutively. He contends that a suspended sentence imposed with a term of imprisonment for a different crime must run concurrently. In support of his claim, appellant cites Arkansas Statutes Annotated section 41-206(2), codified at the time that appellant committed the crimes as Arkansas Code Annotated section 5-4-307(b)(l)(2) (Repl. 2006), which provides:
(b)(1) Whether imposed at the same or a different time, multiple periods of suspension or probation run concurrently.
(2) The period of a suspension or probation also runs concurrently with any federal or state term of imprisonment or parole to which a defendant is or becomes subject to during the period of suspension or probation.
Citing Walden v. State, 2014 Ark. 193, 433 S.W.3d 864 (2014), the State responds that section 5-4-307(b)(2) requires only that a suspended imposition of sentence run concurrent to a term of imprisonment when the defendant becomes subject to the term of imprisonment |sbased on an offense that arose during the period of suspension. Applying this interpretation, the State argues that the statute did not pro hibit the imposition of consecutive sentences here because, rather than being sentenced to a term of imprisonment for a charge that arose during the period of a suspended imposition of sentence, appellant was sentenced to a term of imprisonment and suspended imposition of sentence in one judgment-and-commitment order.
We have repeatedly held that statutory sentencing procedure requires a suspended sentence imposed with a term of imprisonment for a different crime to run concurrently. See Walden, 2014 Ark. 193, 433 S.W.3d 864 (holding that, based on an analysis of section 5-4-307, the appellant’s suspended sentences for two convictions were illegal based on the statute to the extent that they ran consecutive to the sentence of imprisonment imposed for a third offense); Gray v. State, 2014 Ark. 417, 443 S.W.3d 545 (per curiam) (holding that section 5-4-307(b) did not allow the trial court to order the sentence of imprisonment and the suspended imposition of sentence for different offenses to run consecutively); Hendrix v. State, 291 Ark. 134, 722 S.W.2d 596 (1987) (holding that section 41-1206, now codified as section 5-4-307, prevents the stacking of periods of suspension or probation). Accordingly, we hold that the trial court did not have the authority to order that the sentence of 300 months’ imprisonment run consecutively to the 300 months’ suspended imposition of sentence. The result is an illegal sentence, and we reverse the circuit court’s order denying habeas relief and remand for resentencing in accordance with this opinion.
The remaining allegations raised by appellant in his brief consist of convoluted and conclusory statements with strings of citations that provide no basis for granting habeas relief. |4Appellant alleges that he was illegally sentenced as a habitual offender, that prior convictions establishing his habitual-offender status were not admissible evidence, that he was not “supposed to get” a suspended sentence, that the trial court did not have jurisdiction to “modify” his original sentence, and that he should not have been sentenced for the two counts of robbery at a revocation hearing. These claims fail to address how any constitutional or procedural violations implicated the jurisdiction of the trial court or rendered the judgment-and-commitment order invalid on its face. A purely conclusory allegation with no facts to establish' the merit of the claim is not á ground for a writ of habeas corpus. Dunbar v. State, 2015 Ark. 3, 2015 WL 225067 (per curiam).
Reversed and remanded.
Wood, J. dissents.
. At the time of this decision, appellant remains incarcerated in Lee County.
. 2 The record includes the underlying judgment-and-commitment order, which is marked to indicate that, along with the imposition of sentences for two counts of robbery in case number 18CR-13-738, the revocation of appellant’s "probation/SIS” stemming from a felon-in-possession-of-a-firearm conviction in 18CR-06-401 was nolle prossed. | [
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BRANDON J. HARRISON, Judge
|,A jury found Antwan Fowler guilty of possession of a firearm by certain persons. He now appeals his conviction, arguing that the circuit court erred in denying his motions to suppress.his statement to the police and evidence seized from his car. We affirm.
In a felony information filed 18 April 2011, Fowler was charged with possession of a firearm by certain persons and aggravated assault. (The aggravated-assault charge was later nolle prossed.) He filed motions to suppress a statement he gave to the police and a gun seized from his Ford Taurus. The court held a hearing on the motions in August 2012, at which the following testimony was presented.
Officer Andrew Birmingham with the Conway Police Department testified that on 16 April 2011, he responded to a call that Antwan Fowler had pointed a gun at someone on Oak Street and then left in a black Ford Taurus. After another officer located a black Ford Taurus at a nearby gas station, Birmingham pulled up behind the vehicle and relayed the license plate number; records indicated that the vehicle belonged to Antwan Fowler. | ¡.Birmingham rolled down the window of his patrol car and spoke to a man, later identified as Fowler, who was standing near the vehicle, and asked if they could talk. In response, Fowler lifted his shirt to show his waistband, and Birmingham asked Fowler to turn around so that he (Birmingham) could verify that Fowler did not have a weapon. As Fowler approached Birmingham’s vehicle on foot, he asked Fowler if he had any weapons on his person, and Fowler replied no, but stated that there was a gun in his car. At that point, for safety purposes, Birmingham handcuffed Fowler but told him that he was not under arrest. Birmingham then read Fowler his Miranda rights and activated his audio/video recorder. A CD of the subsequent recording was played for the court; in the video, Fowler again admitted that there was a gun in his car and that he was a convicted felon, and he was placed under arrest. On cross-examination, Birmingham agreed that when he made contact with Fowler and asked to speak with him, he was not free to leave.
Officer Chris Atkins testified that when he arrived on the scene, Officer Birmingham was standing in the parking lot and speaking to Fowler. Atkins testified that he “just kind of walked around” and saw a long gun propped up against the passenger seat in Fowler’s vehicle.
Defense counsel argued that the police did not have probable cause or a “particularized suspicion” to justify questioning Fowler and that Fowler was “in custody” and should have been Mirandized as soon as Birmingham approached him. The court ruled from the bench:
I am going to find that there was probable cause to inquire of Mr. Fowler because of the dispatch and the fact that the vehicle had been identified as the suspect vehicle at the [gas station] by another officer. That the contact first made was not an in custodial contact. The question is a ^question that is commonly asked any time an officer has contact with any person in the public, do you have any weapons. He was not in custody at the time.... After he Mir-andized, and it is clear that he did give the Miranda Warnings to Mr. Fowler, he stated that he understood them and then he continued to say that he had a weapon in the car.... Your motion is denied.
A jury found Fowler guilty of possession of a firearm by certain persons and recommended a sentence of eighteen years’ imprisonment, which the court imposed in a sentencing order entered 14 September 2012. Fowler timely appealed.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review of the evidence based on the totality of the circumstances, reviewing findings' of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause; we also give due weight to inferences drawn by the circuit court. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127. And we defer to the circuit court’s credibility and weight-of-the-evidence determinations, reversing only if the court’s decision is clearly against the preponderance of the evidence. Gilbert v. State, 2010 Ark. App. 857, 379 S.W.3d 774.
Fowler focuses his argument on Officer Birmingham’s initial approach and argues that the “stop and seizure could not be based upon any reasonable articulated suspicion sufficient to authorize even an investigatory stop as he had no reason to believe that a crime was afoot.” He argues for a “custodial interrogation” that resulted in the admission that there was a weapon in his vehicle and that it is “undisputed that [he] was not Mirandized after he was taken into custody.” Fowler also argues in his reply brief that Officer Atkins’s “search” of his vehicle was illegal. We do not consider arguments made for the first time in a reply brief. Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006).
|/The State points to the connections between the reported crime, the black Ford Taurus registered to Fowler, and Fowler’s proximity to the Taurus, and says-that Officer Birmingham had a reasonable suspicion that the man standing near the Taurus was Fowler and that he may have committed an aggravated assault. The State further argues that Birmingham’s initial inquiry was not a custodial interrogation and thus did not require a Miranda warning.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Reasonable suspicion is “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R.Crim. P. 2.1. Case law has established that an investigative stop is justified when, under the totality of the circumstances, the police have a specific, particularized, and articulable reason indicating that the person may be involved in criminal activity. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
15Our supreme court has held that Miranda’s safeguards apply as soon as a suspect’s freedom of action is curtailed to a degree associated with a formal arrest. State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995) (citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). The Miranda warnings are not required simply because the questioned person is a suspect. Id. A person is “in custody” for purposes of the Miranda warnings when he or she is “deprived of his freedom by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Wofford v. State, 330 Ark. 8, 28, 952 S.W.2d 646, 656 (1997). In deciding whether a suspect was in custody at a particular time, the relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. Id. A lawful detention under Rule 3.1 does not curtail a person’s freedom of action to a degree associated with a formal arrest, and a Miranda warning is not required. See Ashley v. State, 2012 Ark. App. 131, 388 S.W.3d 914.
We hold that Officer Birmingham’s initial approach was based on reasonable suspicion, considering the matching vehicle description, its proximity to the location of the alleged aggravated assault, and the identification of the vehicle as belonging to Antwan Fowler. We also hold that Birmingham’s initial inquiry of whether Fowler had any weapons on his person was not the result of a “custodial interrogation” and did not therefore require a Miranda warning, Fowler’s statements that it was “a question that was framed to a person who was handcuffed” and that “[i]t is undisputed that appellant was not Mirandized after he was taken into custody” are factually in- . correct. On the contrary, the undisputed testimony of Officer Birmingham established that he asked the initial question as Fowler approached his vehicle, before placing Fowler in handcuffs, and that he 16did Mirandized. Fowler after placing him in handcuffs. And the transcript of the recording dearly establishes that Fowler told Officer Birmingham, after the officer had read the Miranda rights, that he (Fowler) had a gun and that he was a felon in possession of a firearm:
Officer: [H]ave you ever been convicted of a felony?
Mr. Fowler: Yes, sir.
Officer: So you’re a felony [sic]—
Mr. Fowler: Yes, sir.
Officer: —in possession of a firearm?
Mr. Fowler: Yes, sir.
We affirm the circuit court’s denial of the motion to suppress.
Affirmed.
Gladwin, C.J., and Abramson, J., agree. | [
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RITA W. GRUBER, Judge
1 ¶Alvester Bingham brings this appeal from an order of the Desha County Circuit Court granting C & L Electric Cooperative’s motion for summary judgment and dismissing Bingham’s complaint for trespass and conversion. The circuit court found that appellee had acquired a prescriptive easement across appellant’s property for the purpose of maintaining and operating an electrical-distribution line. On appeal, appellant argues' that the circuit court erred in granting summary judgment because there was a genuine issue of material fact regarding whether appellee’s use was adverse or permissive. We find no error, and we affirm the circuit court’s order.
Appellant purchased a small home and thirty-two acres in Kelso,'Arkansas, from his aunt and uncle fifteen to twenty years before the hearing in this case. The land had been in his family for at least fifty years. Appellant had never lived on the property and had always leased it to a tenant. Ray Smith had leased the property from appellant since 1996. ^Undisputed evidence indicated that appellee’s distribution line had run across the front of this property for over thirty years. Appellant testified by deposition that as long as he could remember, appellee had been “topping” the trees that were interfering with the line every five or ten years. The dispute in this case arose in October 2011 when appellee cut down a large oak tree, a persimmon tree, and several smaller trees that were interfering with the distribution line. Appellee left stumps and debris scattered in the yard.
Appellant filed a complaint against ap-pellee, alleging that the trees had been planted fifty or sixty years earlier by appellant’s grandmother and were of great sentimental value to the family. Appellant alleged that appellee had no authority to remove the trees and that appellant had been deprived of the enjoyment of the trees, the value of the lumber, and the historical significance of the trees. He alleged causes of action for conversion, trespass, and conspiracy.
Appellee filed an answer denying the allegations. Appellee also filed a motion for summary judgment, alleging that the undisputed facts established that appellee had a valid, prescriptive utility easement that permitted it to remove the trees and that appellant was barred by the seven-year statute of limitations from seeking relief. It attached an affidavit of Robert Rupe, appellee’s right-of-way supervisor, who stated that appellee’s line running across appellant’s property had been there for over thirty years, that the line provided power to approximately thirty-five accounts, and that appellee’s employees had top-trimmed the oak tree and the persimmon tree numerous times before cutting them down, but the trees repeatedly grew back and interfered with the line each time. He stated that the trees had | sbecome more difficult to trim because earlier trimmings had caused large knots to form in the wood and the branches to grow more densely than before. He said that the trees had been identified as problem trees directly in the right-of-way. Ap-pellee also attached appellant’s deposition, Ray Smith’s deposition, pertinent national safety rules, U.S. Department of Agriculture right-of-way-clearing specifications, and photos of the distribution line on appellant’s property. Appellant responded but attached no documents or evidence to his response. His brief included attached excerpts from his deposition and Ray Smith’s deposition.
The circuit court granted appellee’s motion for summary judgment, finding that appellant had been aware of appellee’s open, obvious, and adverse use of his property for more than the statutory seven-year period and that appellee had acquired a ten-foot easement by prescription on either side of its line for the purpose of maintaining and operating an electrical-distribution line. The court also found that all of the trees removed were within appellee’s right-of-way and that their removal was necessary for public safety. The court reasoned at the hearing that appellant had acknowledged that appellee had “topped off’ the trees from time to time over the last thirty or forty years and noted that the evidence showed that appellant acquiesced in this activity and that those he “inherited the property from” had also acquiesced. The court found that appellant failed to produce evidence to meet proof with proof.
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Gallas v. Alexander, 371 Ark. 106, 114, 263 S.W.3d 494, 501 (2007). Once |4the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Stromwall v. Van Hoose, 371 Ark. 267, 279,' 265 S.W.3d 93, 102 (2007). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Town of Gilbert v. Fruehauf 2013 Ark. App. 17, at 2, 425 S.W.3d 816, 817. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 3, 425 S.W.3d at 817. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id.
On appeal, appellant contends that the court erred in granting summary judgment because appellee failed to establish that its use of appellant’s property was adverse rather than permissive. He argues that the evidence merely showed that appellee accessed the property over the years solely to trim trees and maintain its distribution lines. He claims that access was never granted for any other purpose. He also argues that no one, including appellant, complained about this use or attempted to prevent it and, thus, that the use was permissive.
In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Associates, 346 Ark. 354, 363-64, 57 S.W.3d 187, 193 (2001). The statutory period of seven years for adverse possession applies to prescriptive easements. Id. Although appellant is correct |3that permissive use of an easement cannot ripen into an easement by prescription without clear action placing the owner on notice of the adverse use, an owner of land in Arkansas may create an easement by prescription over his property if he acquiesces in the use by another of his land for a right-of-way, consenting to such use by silence or passive assent. See Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954); Kelley v. Westover, 56 Ark. App; 56, 938 S.W.2d 235 (1997).
In Fullenwider, our supreme court explained,
Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
Fullenwider, 223 Ark. at 446, 266 S.W.2d at 283. We explained the concept of acquiescence in this context as follows:
The foundation of a right by prescription is acquiescence of the owner of the ser-vient tenement in the acts relied on to establish the easement by prescription. Acquiescence is here used in its ordinary sense; it does not mean license or permission in the active sense, but means passive assent or submission, quiescence, or consent by silence.
Kelley, 56 Ark. App. at 59, 938 S.W.2d at 236 (quoting 25 Am.Jur.2d, Easements and Licenses §§ 72 & 73 (1996)). In Sebastian Lake Developments, Inc. v. United Telephone Co., our supreme court affirmed a judgment finding a prescriptive easement in favor of a telephone company, holding that the telephone company proved its use was adverse where
[t]he lines and poles were visible; the company’s employees entered when necessary to repair and service the poles. Appellee’s acts, over a long period of years, were entirely consistent with the acts of one who claims an easement— and these acts had been observed by company representatives, and certainly could have been seen by | Rprior owners of the property.
240 Ark. 76, 82, 398 S.W.2d 208, 212 (1966); see also Dixie Furniture Co. v. Ark Power & Light Co., 19 Ark. App. 160, 718 S.W.2d 120 (1986) (affirming finding of prescriptive easement where transmission lines and a tower had been on subject property for years and appellant and predecessors in title knew or should have known lands were being used adversely).
Here, there was no dispute that appel-lee’s distribution line was visible and ran across the front of appellant’s property. Appellant presented no affidavit or other documentation showing that appellee’s placement of poles and lines on the property was by agreement or otherwise permissive or that the parties had limited the scope or manner in which appellee could maintain its equipment. Nor was there any dispute that the poles and lines had been there for over thirty years. Appellant testified that appellee had topped off the trees regularly for the past thirty to forty years and that when he was a teenager he remembered seeing where appel-lée had come and topped them off every five or ten years. Appellant admitted that he had always known of the distribution lines and that appellee regularly trimmed the trees around the lines. His tenant since 1996, Ray Smith, testified by deposition that he had seen evidence of appellee’s trimming and maintenance of the trees surrounding its lines several times after ice storms over the years. He also had seen appellee work on the lines and inspect the poles to maintain them. There was no evidence that appellant or his predecessors had ever spoken to anyone who worked for appellee about the lines.
After reviewing the evidence presented and the applicable law, we affirm the circuit |7court’s grant of summary judgment, finding no genuine issue of material fact on the existence of appellee’s prescriptive easement.
Affirmed.
Abramson, Glover, and Hixson, JJ., agree.
Hoofman, J., concurs.
Virden, J., dissents. | [
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KAREN R. BAKER, Associate Justice
hOn May 23, 2012, a Pulaski County jury convicted appellant, Tevin A. Bradley, of capital felony murder and aggravated robbery, with a firearm enhancement on each count. Bradley was sentenced to life imprisonment without the possibility of parole for the murder, forty years for the aggravated robbery, and zero months for the enhancements. Bradley’s convictions and sentences were affirmed in Bradley v. State, 2013 Ark. 58, 426 S.W.3d 363. We recounted the facts in Bradley’s direct appeal as follows:
Bradley’s case arises from an aggravated robbery and theft of marijuana at the home of Evon Henderson where Evon Henderson was killed. On January 2, 2011, Bradley and Veeders Nelson, Bradley’s co-defendant, went to Evon Henderson’s home to purchase marijuana from Byron Lawrence. Lawrence was in a small room in the back of the Henderson home and testified that he had a trash bag with approximately four pounds of marijuana in it in the middle of the floor. Ed Henderson was in the room with Lawrence as the robbery occurred. Evon Henderson was in [the] kitchen, which was adjacent to the room where the robbery was transpiring. Evon Henderson shut a door that adjoined the two rooms. Nelson testified that when Evon Henderson shut the door, the door slammed, and Nelson fired a shot through the door. The bullet went through the door to the other side and | ahit Evon Henderson in the back as she walked away from the door. She took a few steps, collapsed and died. Nelson testified at trial and admitted to firing the gun that shot and killed Evon Henderson. . Nelson also testified that ■ he and Bradley both fled the scene, and Bradley grabbed the bag of marijuana from the floor. They ran out and jumped in Bradley’s green Pontiac and were both on the run for a' period of time. Nelson testified that when they fled, Bradley waited outside the Henderson home for him. Bradley testified that when he fled the scene he was not aware that anyone had been hurt. Nelson and Bradley both evaded law enforcement for some time, spending some of the time on the run together, and some on their own. The record demonstrates that Nelson surrendered after twenty-four days on the run, and Bradley ultimately surrendered after approximately forty-seven days on the run having fled to various hotels and family members’ homes. On March 1, 2011, Bradley surrendered to the local police. Nelson negotiated a plea and received a thirty-year sentence for first-degree murder for the death of Evon Henderson.
Bradley, 2013 Ark. 58, at 1-2, 426 S.W.3d at 365.
On May 3, 2013, Bradley filed his initial Rule 37.1 petition in Pulaski County Circuit Court, and on July 31, 2013, the State responded. On August 29, 2013, a hearing was held but no testimony was taken because both Bradley and the State filed written motions and relied upon those mo-, tions at the hearing.
On September 16, 2013, the circuit court denied Bradley’s Rule 37 petition. Bradley now brings this appeal and presents two issues for review: (1) defense counsel was ineffective in failing to argue on directed verdict that the theft-of contraband cannot support a theft or robbery conviction and (2) defense counsel was ineffective in failing to argue that during the guilt phase it was a violation of Arkansas’s “truth-in-sentencing” provision to not tell the jury that a conviction for capital felony murder would automatically result in a life-without-parole sentence.-
Prior to reaching the merits of Bradley’s appeal, we note that Bradley brings this appeal pursuant to Rule 37.1. Subsection (c) of Rule 37.1 provides as follows:
| «(e) The petition shall be accompanied by the petitioner’s affidavit, sworn to before a notary or other officer authorized by law to administer oaths, in substantially the following form:
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 (d) The circuit clerk shall not accept for filing any petition that fails to comply with subsection (c) of this rule. The circuit court or any appellate court shall dismiss any petition that fails to comply with subsection (c) of this rule.
(Emphasis added.)
Accordingly, Rule 37.1(c) requires a form of affidavit to be attached to the petition. The verification requirement for a petition for postconviction relief is of substantive importance to prevent perjury. Butler v. State, 2014 Ark. 380, 2014 WL 4649476 (per curiam); Stewart v. State, 2014 Ark. 85, 2014 WL 689043 (per curiam); Paige v. State, 2013 Ark. 135, 2013 WL 1281833 (per curiam). “For that purpose to be served, the petitioner must sign the petition and execute the requisite affidavit or verification. Paige, 2013 Ark. 135 [2013 WL 1281833]; Riley [v. State ], 2010 Ark. 347 [2010 WL 3720003] (citing Boyle v. State, 362 Ark. 248, 208 S.W.3d 134 (2005) (per curiam)).” Butler, 2014 Ark. 380, at 1, 2014 WL 4649476.
14Here, Bradley has brought an appeal of the circuit court’s September 16, 2013 order denying his Rule 37 petition. However, Bradley’s Rule 37.1 petition must be accompanied by an 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 to the best of Bradley’s knowledge and belief. While Bradley’s signature on the petition was notarized, there was no verification that the facts stated in the petition were true, correct, and complete as required by the Rule. Accordingly, Bradley’s petition was not in compliance with the Rule.
Rule 37.1(d) requires that “the circuit court or any appellate court shall dismiss any petition that fails to comply with subsection (c) of this rule.” For that reason, we dismiss Bradley’s appeal. Dismissed.
Hannah, C.J., and Danielson and Wood, JJ., dissent.
. We note that the dissent states that because the issue of verification does not impact subject-matter jurisdiction, this court should reach the merits of Bradley’s appeal. However, we dismiss Bradley’s appeal for failure to comply with Rule 37.1(c) because the Rule requires that any appellate court shall dismiss any petition that fails to comply with that subsection. (Emphasis added.) | [
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PHILLIP T. WHITEAKER, Judge
| Appellant Linda Morrison owns a parcel of land that abuts another parcel owned by appellee Donavea Carruth. A nin'e-and-a-half-foot-wide strip runs along the parties’ common boundary line. Morrison filed a petition for declaratory judgment and to quiet title, alleging two separate theories: 1) that the strip was encompassed by her property description; or 2) alternatively, that she had adversely possessed the land by maintaining, using, and improving the property. The Sebastian County Circuit Court determined that Morrison failed to meet her burden of proof on either theory. On appeal, Morrison argues that the circuit court erred in finding that she failed to meet her burden of proving the common-law elements of adverse possession. We find no error and affirm.
| ¿This court reviews adverse-possession and quiet-title actions de novo on the record and will not reverse a finding of fact by the trial court unless it is clearly erroneous. Parkerson v. Brown, 2013 Ark. App. 718, 430 S.W.3d 864. In reviewing a trial court’s findings of fact, this court gives due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Strother v. Mitchell, 2011 Ark. App. 224, 382 S.W.3d 741.'
Morrison moved onto her property in 1980 and purchased it in January 1982. At the time she bought the land, a storage building that had been on the property for twenty years and a dog pen encroached onto the disputed nine-and-a-half-foot-wide strip. The exact distance of these encroachments was not specified but was estimated as being anywhere from inches to maybe a foot or so. It was undisputed that a ditch was contained within the nine- and-a-half-foot-wide strip and that Morrison’s water meter was located about a foot beyond Carruth’s side of the ditch. It was also undisputed that the water meter had been in that location at the time Morrison purchased the property. Morrison planted pine trees along her side of the ditch in 1981, and she subsequently planted some crape myrtles next to the pine trees. At some point, Morrison had a compost area within the disputed strip, but that compost area had been removed by the time of trial. Morrison offered no survey of the boundary lines and conceded that she did not have any idea, based on the land description contained in the deed, where her boundary lines actually were. Morrison never erected a fence on the property, but . she did put up a dog pen in April 2013. This was the first structure that she had built on the disputed strip of land.
1¡¡Carruth moved onto her property in 1985, with the understanding that the strip running along the boundary was within her land description. She supported this understanding with the sworn testimony of Christine Woods, who owned the property directly behind Morrison’s property and who had initially sold the property to Morrison, that the ditch was entirely within Carruth’s property boundary. Carruth acknowledged that the storage shed and original dog pen encroached onto the disputed strip, but only by a minimal amount. The dog pen that Morrison built in 2013 was the first time that any structure had been erected that directly encroached on Carruth’s property. Both Morrison and Carruth claimed to have been responsible for mowing and maintaining the disputed tract.
Based upon this evidence, the circuit court entered an order denying Morrison’s petition for declaratory judgment and quiet title. The court first rejected Morrison’s claim that she was the record owner of the property, noting that she never introduced a survey or other competent evidence to support her claim that the property at issue lay within the legal description set forth in her deed.
Second, the court rejected Morrison’s adverse-possession claim for failure of proof. The court found that the pine trees were planted before Carruth became Morrison’s neighbor; therefore, they were not evidence of adverse possession against Carruth because she could not have been aware that they were planted in derogation of any property rights she held. Likewise, the storage buildings and the old dog pen had been on the property at the time Morrison purchased it and, in any event, encroached by only a few inches over the property line. The court placed little weight on the evidence of the compost pile, as it had been |4removed by Morrison. The court found that the evidence regarding who maintained the property was evenly balanced; since the burden of proof rested with Morrison, the court resolved that issue in favor of Car-ruth. Because Morrison could not establish the common-law elements of adverse possession, the court found it unnecessary to consider the statutory requirements, and it therefore ruled in favor of Carruth and against Morrison.
On appeal, Morrison argues that the circuit court erred in finding that she failed to establish all of the common-law requirements for adverse possession. Adverse possession is governed by common law. Lafferty v. Everett, 2014 Ark. App. 332, 436 S.W.3d 479; Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that the possession has been visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. Lafferty, supra. Whether possession is adverse to the true owner is a question of fact. Id.) Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990); Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990). It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Lafferty, supra; Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). The proof required as to the extent of possession and dominion may vary according to the location and character of the land. Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996).
|fiWe hold that the circuit court did not err in finding that Morrison failed to establish the common-law elements of adverse possession. The testimony clearly supports the circuit court’s findings. The physical encroachments by the storage shed and dog pen were so slight as to be nearly imperceptible, and, as the circuit court found, their “existence certainly does not meet the common-law elements of adverse possession.” The pine trees were planted before Carruth ever moved onto the property, so she could not have been aware that they had been planted in derogation of her property rights. Finally, the evidence as to who mowed and maintained the property was considered and balanced by the circuit court, which correctly found that, since the testimony was evenly divided, Morrison failed to meet her burden of proof. See Barre v. Hoffman, 2009 Ark. 373, at 10, 326 S.W.3d 415, 421 (“Where the evidence tends equally to sustain two inconsistent propositions, the party having the burden of proof cannot prevail.”) (quoting Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 298, 517 S.W.2d 210, 222-23 (1974)).
Because Morrison failed to establish the common-law elements, the circuit court found it unnecessary to rule on the statutory elements of adverse possession. Morrison nonetheless argues that her deed can be relied upon to satisfy the color-of-title requirement and that it was “uncontrovert-ed” that she “paid all of the property taxes on the property she purchased in 1982 which lies contiguous to the property in dispute.” This is essentially an argument that she met the statutory requirements of adverse possession. Arkansas Code Annotated section 18-11-106 (Supp. 2013), which codified Act 776 of 1995, added that the claimant must prove color of title and payment of taxes on the subject property or contiguous property for seven | fiyears as a statutory requirement for proof of adverse possession, in addition to the common-law elements. Morrison’s argument is without merit.
First, no evidence regarding Morrison’s deed or tax payments was ever introduced at trial. Instead, Morrison attached copies of her deed and tax records to her complaint. Exhibits to a pleading, however, are not evidence and must be introduced at trial in order to be considered. S. Farmers Ass’n v. Wyatt, 234 Ark. 649, 353 S.W.2d 531 (1962); see also Jones v. Harris, 221 Ark. 716, 255 S.W.2d 691 (1953); Foster v. Elledge, 106 Ark. 342,153 S.W. 819 (1913).
Second, it was unnecessary for the circuit court to rule on the additional statutory elements at all, because the statute applies only to adverse-possession claims that would have vested after the statute was enacted in 1995. See Teague v. Canfield, 2014 Ark. App. 716, at 6, 2014 WL 7188870;. Lafferty, 2014 Ark. App. 332, at 2, 436 S.W.3d at 480 (“The claimant need not comply with the statutory change, however, if the right to the disputed property vested before 1995.”). As Morrison contended that she had possessed the property adversely since 1982, the seven-year period necessary to establish adverse possession would have vested long before 1995. Accordingly, Morrison is incorrect that she “proved” that she satisfied the statutory elements of adverse possession.
Affirmed.
Gruber and Brown, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
I;Heather Swain appeals from her convictions on charges of accomplice to capital murder and accomplice to kidnapping, which resulted in a sentence of life imprisonment. She argues on appeal that the introduction of certain portions of her interview with police violated her rights un der the Confrontation Clause of the Sixth Amendment to the United States Constitution. We affirm.
Appellant was charged with accomplice to capital murder, accomplice to kidnapping, tampering with physical evidence, and engaging in violent criminal-group activity. Prior to trial, she filed a number of motions seeking to have certain evidence suppressed. Among these was a motion to suppress portions of her interview with police on the grounds that statements by officers during the interview constituted inadmissible hearsay and violated her rights under the Confrontation Clause. Included in these statements by police was information that the Rpolice claimed had been given to them by appellant’s co-defendants, James Patton, Anthony Alan Swinford, and Timothy Swinford. All of appellant’s pretrial motions were denied by the trial court.
At trial, Washington County Sheriffs Deputy Ryan Melancon testified that on December 27, 2012, at approximately 8:30 a.m., he responded to a welfare-check call on Four Corner Road in the far southwest portion of Washington County. As he pulled up, he could see a body on the ground with no shirt, blue jeans, and tennis shoes. Deputy Melancon testified that it was apparent as soon as he touched the body with a gloved hand that the person was deceased. The deceased was subsequently identified as Ronnie Bradley. It was determined that Mr. Bradley had been killed by a combination of blunt-force trauma and strangulation.
The State contended at trial that appellant was an accomplice to the kidnapping and murder of Ronnie Bradley because she went with the co-defendants to pick up Ronnie at his home and subsequently drove her vehicle while James Patton, Tim Swinford, and Alan Swinford beat Ronnie both inside and outside the vehicle and choked him with one of the vehicle’s seat-belts. The State produced evidence that blood was found in appellant’s vehicle. The State also produced evidence that appellant was seen in her vehicle, along with Ronnie and her co-defendants, between the hours of 12:00 p.m. and 6:00 p.m. on December 26, 2012.
Detective Bret Hagan testified that he conducted a two-and-a-half-hour interview with appellant on Deeémber 27-28, 2012. Over appellant’s objection, the recording of the | ..¡interview was played for the jury. A transcript of the interview was also entered into evidence over appellant’s objection. Before the recording was played, the trial court admonished the jury, stating,
Now, ladies and gentlemen, members of the jury, the State is about to play this interview and you’re about to see the interview with the Defendant, Ms. Swain. A number of the questions asked by the officers conducting the in- ■ terview are basically hearsay and you’re therefore not to consider those questions as the truth of the matter asserted, only as a means of interrogating a witness, more particularly Ms. Swain.
During the interview, appellant initially told' the detectives that there had been an incident during which Alan and Tim Swin-ford had punched Ronnie while they were all in her vehicle. She then maintained that Ronnie got into the Swinfords’ truck while Alan and Tim came into her home for a short time and that Ronnie, Alan, and Tim left together at about 5:00 p.m. When the detectives confronted her with information from the co-defendants and other witnesses, her subsequent statements changed and included more detail, including indications that Ronnie had begged her to go home, that she wanted to go home but was afraid of Alan and Tim, who refused to allow her to take him home, and that James had tried to stop Alan and Tim and that they had attacked James. She stated that Alan and Tim had “put [Ronnie] out on the road” and promised to go back and get him as opposed to leaving her house with Ronnie in their truck, as she had stated earlier. She also initially | Jndicated that Alan was standing next to her when she went to Ronnie’s door to pick him up, but then later stated that he was probably not standing where Ronnie could have seen him.
After the State rested, appellant called Alan Swinford to testify. Ronnie had been in a relationship with Alan’s wife, Amy, at the time of her death, apparently from a drug overdose, earlier in December 2012, and Alan blamed Ronnie for Amy’s death. Alan testified that he and Tim would not let appellant take Ronnie Bradley home even though he asked to go home. He stated that he was not going to let anyone get between him and Ronnie “without a fight.” According to Alan, appellant did most of the driving. Alan testified that while appellant went to Ronnie’s door, he was in the cargo area of the Suburban with his head against the back window. At one point, while James was driving the vehicle, appellant began yelling at Ronnie about Amy’s death. Alan testified that once the beating of Ronnie started, he did most of it, and James struck Ronnie as well.
According to Alan, appellant slapped Ronnie while Ronnie was being beaten. Appellant made statements to Ronnie that she knew would further infuriate Alan. She also pulled over.while Ronnie was being beaten, allowed Ronnie to be dragged from the vehicle and beaten, and began driving again after Ronnie had been put back in the vehicle. Alan testified that he did not remember telling appellant that she could not take Ronnie home. Alan also denied telling appellant not to call the police. Alan later contradicted his earlier statement by testifying that he would not let appellant take Ronnie home and indicating that James had tried to stop the beating. Alan then later said that Tim was the only one who said to stop the beating and that he was not sure whether appellant or James ever told him to stop.
|sThe jury convicted appellant as an accomplice to both capital murder and kidnapping. The trial court sentenced appellant to life imprisonment without parole on the capital-murder charge and 300 months’ imprisonment on the kidnapping charge, with the sentences to run concurrently. This appeal followed.
Appellant’s argument on appeal is that the introduction of the video and transcript of her interview with police violated her right to confront witnesses against her under the Confrontation Clause of the Sixth Amendment to the United States Constitution because the police repeated statements made by co-defendants who did not testify at trial. As this raises an issue of constitutional interpretation, our review is de novo. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144.
We must determine whether the statements objected to by appellant are hearsay, as the admission of nonhearsay raises no confrontation-clause concerns. Vidos v. State, 367 Ark. 296, 310, 239 S.W.3d 467, 478 (2006). “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c) (2014). The State contends that the references by the detectives during appellant’s interview to statemehts made by the co-defendants are not hearsay because they were not offered in evidence to prove the truth of the matters asserted in the statements. We agree.
As noted above, appellant’s responses to the inquiries by the detectives changed as she was confronted with their knowledge of the events leading to Ronnie’s death. It is clear that the purpose of introducing the interview was not to attempt to prove the veracity of the ^statements attributed to the nontestifying co-defendants and witnesses. Instead, the purpose was to give context to appellant’s responses, make those responses intelligible, and demonstrate how appellant’s responses changed as she was confronted with what the detectives had already been told. In addition, the trial court specifically admonished the jury not to consider the statements as evidence of the truth of the matters asserted but as an interrogation technique. We presume that a jury follows the trial court’s instructions. See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
Appellant argues that two precedents from the United States Supreme Court require reversal in this case. Her reliance on those precedents is misplaced. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the Court held that the defendant’s confrontation rights were violated when the prosecution read a witness’s confession, which implicated the defendant, into the record after the witness had claimed Fifth
Amendment privilege. In Bruton v. United, States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the trial court allowed the prosecution to introduce the confession of a co-defendant at a joint trial, with an instruction for the jury to consider the confession as evidence against the confessing co-defendant but not as evidence against Bruton. The United States Supreme Court held that. the defendant’s confrontation rights were violated, notwithstanding the instruction. The crucial distinction between Douglas, Bruton, and the case at bar is that, in the former cases, the disputed statements were clearly out-of-court statements |7offered to prove the truth of the matters asserted therein. In other words, those statements were undoubtedly hearsay. In Douglas, the prosecution was attempting to use the witness’s statements to prove the truth of the matters asserted because it could not elicit the same testimony from him at trial. In Bruton, the prosecution introduced the co-defendant’s confession to prove the truth of his statements because the jury was considering the co-defendant’s guilt as well as the defendant’s. Here, the State, as explained above, did not introduce the detectives’ references to the co-defendants’ statements as evidence of the truth of the matters asserted in those statements.
Also, in Bruton, the admonition by the trial court was deemed insufficient because the State was attempting to prove the truth of the matters asserted in the statement against one of the defendants, leaving the jury with an extremely difficult task in mentally separating the two defendants with regard to the hearsay statements. Despite appellant’s efforts to equate the situation in this case with that presented in Bruton, the circumstances presented in the two cases are materially different, because the State was not presenting the statements against appellant as evidence of the truth of the matters asserted in the statements, and appellant was the sole defendant on trial. Thus, the mental contortions required of the jury in Bruton were not required here. The holdings in Douglas and Bruton do not require reversal in this case.
Because the detectives’ references to the co-defendants’ statements were not introduced into evidence to prove the truth of the matters asserted, they are not hearsay. Because the statements are not hearsay, appellant’s confrontation-clause argument has no | smerit. Decay v. State, 2009 Ark. 566, 352 S.W.3d 319.
This reasoning is in line with decisions from other state appellate courts and federal courts of appeal. The Eighth Circuit Court of Appeals has held that out-of-court statements that merely provided context for other admissible statements made by a defendant and his coconspirators that were not offered for their truth were not hearsay. United States v. Crippen, 627 F.3d 1056 (8th Cir.2010). In State v. Tovar, 605 N.W.2d 717 (Minn.2000), the court held that statements by police during a taped interview of the defendant about what non-testifying co-defendants had told them were not inadmissible hearsay because they were not offered for the truth of the matter asserted but rather to give context to the defendant’s responses and admissions. Likewise, in McWatters v. State, 36 So.3d 613 (Fla.2010), the court held that statements by officers during an interview about what nontestifying witnesses had told them were not offered for the truth of the matters asserted, noting that a limiting instruction had been given. Also, the Indiana Supreme Court has held that statements and questions by police during an interview were not inadmissible hearsay because they were made to elicit responses from the defendant, and were not offered as proof of the facts asserted therein, also noting that a limiting instruction was given by the trial court. Strong v. State, 538 N.E.2d 924 (Ind.1989).
| ^Appellant also argues that an opinion by this court affirming the trial court could be subject to being abused by police and the State in future cases. We wish to make it abundantly clear that our holding in this case is limited to the specific facts presented. Similar allegations of confrontation-clause violations that may be made in future cases are to be addressed by our circuit courts, and will be decided by this court and our court of appeals if appealed, in accordance with the applicable law and the specific facts presented in those cases.
The record has been reviewed pursuant to Arkansas Supreme Court Rule 4 — 3(i), and no reversible error has been found.
Affirmed.
Baker and Hart, JJ., dissent.
. Despite the trial court’s reference to the questions as "hearsay,” its later reference to not considering the questions for the truth of the matter asserted indicates that it was using the term hearsay in its colloquial sense and not according to its legal definition, as hearsay, by definition, must be offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c) (2014).
. As Alan Swinford testified at trial, any statements attributed to him would not implicate the Confrontation Clause, because he was subject to examination regarding those statements at trial. Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Appellant conceded at oral argument before this court that any statements attributed to Alan would not raise confrontation-clause concerns.
. The dissent alleges that we have failed “to ' take into account” whether a statement by James was made for the truth of the matter asserted when it was made by James to the officer and that we have failed to acknowledge a second layer of hearsay. While we in no way concede that this assertion has merit, appellant never argued to this court, either in her brief or at oral argument, that the statements constituted inadmissible hearsay on this basis. This court does not research or develop arguments for appellants. Eaistin v. State, 2010 Ark. 275, 2010 WL 2210924. | [
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PER CURIAM
| ,In 2013, appellant Johnathan Johnston was found guilty by a jury of three counts of rape. He was sentenced to 480 months’ imprisonment for each count to be served concurrently. We affirmed. Johnston v. State, 2014 Ark. 110, 431 S.W.3d 895.
In 2014, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The trial court denied the petition, and appellant lodged an appeal from that order in this court. He now seeks by pro se motion an extension of time to file his brief-in-chief. Because it is clear from the record that appellant could not prevail if the appeal were permitted to go forward, the appeal is dismissed, and the motion is moot. See Winters v. State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam).
Appellant was charged in 2011 with raping his then nine-year-old daughter between 2006 and 2011. The victim testified that appellant had begun raping her when she was four or five [¿years old during her weekly visitation with him, which was established following her parents’ divorce. She stated that the rapes occurred several times during each weekend visit and that appellant raped her vaginally, orally, and anally. The victim further testified that appellant had occasionally used a condom but that he typically ejaculated on her. The victim explained that appellant used threats to obtain her silence, but she decided in 2011 to reveal the abuse. While appellant would normally have the victim change her clothes and shower after the rapes, she decided not to change her underwear before she went home one weekend. After the victim returned home and told her grandmother about the rapes, she was taken to Arkansas Children’s Hospital, where she underwent a sexual-assault examination. A swab taken from her vagina tested positive for sperm cells, although the cells were unable to be DNA typed. The underwear that the victim had worn home that weekend was ■ also examined, and appellant’s semen was found in the crotch area. His semen was also found on four other pairs of the victim’s underwear seized from appellant’s home. A forensic sexual-assault examination conducted two weeks later revealed that the victim had a major tear in her hymen that indicated sexual abuse involving penetrating trauma.
In his Rule 37.1 petition, appellant’s claim for postconviction relief was that he was not afforded effective assistance of counsel at trial. This court has held that it will reverse the trial court’s decision granting or denying postconvic tion relief only when that decision is clearly erroneous. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). A finding 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 committed. I3Sartin v. State, 2012 Ark. 155, 400 S.W.Bd 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the 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), the trial court clearly erred in holding that counsel’s performance was not ineffective. Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam).
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, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel 14claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that 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 decisión reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id: The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. 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. “[TJhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
Appellant’s grounds for postconviction relief under the Rule pertained to counsel’s failure to obtain expert witnesses to testify for the defense to combat the evidence adduced by the State that the victim had been repeatedly raped by appellant. He first alleged that counsel was remiss for not obtaining an expert witness who would have testified that the victim’s alie- gations could not have been true because a person of his large size would have caused major physical injury to the child if he had raped her multiple times over several years. He argued that an expert’s discrediting of the child’s testimony would have had a “serious impact on the guilt and innocence phase of the jury’s consideration, and at sentencing had the jury convicted of a lesser included offense.” He further contended that an expert should also have been called to testify | sthat, if the victim had been repeatedly raped as she testified, she would surely have contracted a certain sexually transmitted disease with which he was known to suffer. Appellant did not identify particular witnesses who could have been called to provide the testimony on the lack of physical injury to the victim or the failure of the victim to contract the sexually transmitted disease. He also did not establish that the testimony of either witness would have been admissible into evidence.
Appellant also asserted that counsel should have called a psychiatrist or psychologist as an expert witness in the field of “psychosexual behavior and/or sex therapy.” Again, without identifying any such witness who was available or establishing that the witness’s testimony would have been admissible, appellant claimed that the expert could have informed the jury that appellant had never had a desire, propensity, or urge to have sexual contact with a child. Noting that there was incriminating evidence introduced at trial of files on appellant’s computer depicting pornographic images, appellant argued that there was no evidence as to who had created the files or who had viewed them.
Appellant did not establish that the failure of counsel to obtain the testimony of any of the three expert witnesses violated the Strickland standard for a showing of ineffective assistance of counsel. This court has held that the objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Hayes v. State, 2011 Ark. 327, 388 S.W.3d 824 (per curiam). In order to demonstrate prejudice, appellant must establish that there is a reasonable probability that, had counsel performed further investigation and | ¿presented the expert witness, the outcome of the trial would have been different. -See Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per curiam). The burden is on the petitioner to establish the admissibility of the witness’s testimony. See Hayes, 2011 Ark. 327, 383 S.W.3d 824; see also Pollard v. State, 2014 Ark. 226, 2014 WL 2019296 (citing Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam)). The decision to call of not to call a particular witness is generally a matter of professional judgment and trial strategy that is outside the purview of Rule 37.1. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734 (citing Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam)). The fact that there was a witness, or witnesses, who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Feuget, 2015 Ark. 43, 454 S.W.3d 734.
With respect to the claims pertaining to the lack of injury to the victim and her failure to contract the sexually transmitted disease from appellant, considering the totality of the evidence, which included appellant’s semen found on five pairs of the victim’s underwear and a major tear in her hymen, even had experts testified in the manner desired by appellant, it does not follow that such testimony would have completely negated the victim’s testimony that she was repeatedly raped. The jury would have been free to believe all or part of her testimony. Hayes, 2011 Ark. 327, 388 S.W.3d 824. Accordingly, we cannot say that the trial court erred in concluding that the potential expert testimony, as presented by appellant, would have been sufficient to raise the probability that the outcome of the trial would have been different. As to the allegations that an expert could have testified that appellant did not have a proclivity for sex with a child, appellant again did not establish that the testimony would have been admissible. Also, there is nothing in the petition to demonstrate that there is a reasonable probability that |7the outcome of the trial would have been different in light of the evidence adduced at trial. Appellant offered no statement of compelling evidence that any of the expert witnesses, even if the experts could have offered admissible testimony, would have countermanded the evidence against appellant when that evidence is considered in its totality. See Green v. State, 2014 Ark. 284, 2014 WL 2814866 (per curiam).
When a petitioner pursuant to the Rule claims ineffective assistance of counsel based on the failure of counsel to call an expert witness, the petitioner bears the heavy burden of supporting his allegations with facts that established that the defense suffered actual prejudice arising from counsel’s conduct. See Feuget, 2015 Ark. 43, 454 S.W.3d 734. As stated, there is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Anderson, 2015 Ark. 18, 454 S.W.3d 212. The claimant must provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting a Rule 37.1 petition. Green, 2014 Ark. 284, 2014 WL 2814866; Dixon v. State, 2014 Ark. 97, 2014 WL 805350 (per curiam) (citing Abernathy, 2012 Ark. 59, 386 S.W.3d 477). Appellant did not show that there is a reasonable probability that, but for counsel’s error, the fact-finder would have had a reasonable doubt respecting guilt and the outcome of the proceeding would have been different. See Feuget, 2015 Ark. 43, 454 S.W.3d 734
Underlying each of appellant’s assertions of ineffective assistance of counsel were extensive challenges to the sufficiency of the evidence to support the judgment of conviction. |8To the extent that the allegations pertaining to the failure of counsel to call expert witnesses were intended as a direct or indirect challenge to the sufficiency of the evidence, Rule 37.1 does not provide a means to attack the weight of the evidence to support the conviction. See Williams v. State, 2013 Ark. 375, 2013 WL 5524467 (per curiam); Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985) (per curiam). It is well settled that Rule 37.1 does not afford an opportunity to a convicted defendant to challenge the sufficiency of the evidence merely because the petitioner has raised the challenge as an allegation of ineffective assistance of counsel. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam) (citing Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam) (The trial court was correct to deny relief on a Rule 37.1 petition where the claims, while framed as allegations of ineffective assistance of counsel, were a challenge to the sufficiency of the evidence because such claims are a direct attack on the judgment and not cognizable under the Rule.)).
Appeal dismissed; motion moot. | [
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PAUL E. DANIELSON, Associate Justice
| Appellant City of Greenwood (“City”) appeals from the interlocutory order of the Sebastian County Circuit Court in favor of separate appellees Shadow Lake Association, Inc., a/k/a Shadow Lake Property Owners Association, an Arkansas nonprofit corporation (“SLPOA”) and Shirley Ann Walters and Jennifer Puckett, Trustees of the Bill and Shirley Walters Family Trust of 2007 (collectively, “the Trustees”). The SLPOA and the Trustees had sued the City, claiming that two of the City’s ordinances, which were to submit to the City’s voters questions relating to the annexation of property, were derived in violation of the open-meetings provision of the Arkansas Freedom of Information Act (“FOIA”). In its order, the circuit court granted in-junctive relief by ordering that the ordinances not be included on |gthe November 4, 2014 ballot. See Ark. R.App. P.-Civ. 2(a)(6) (2014) (permitting the appeal of an interlocutory order by which an injunction is granted). On appeal, the City asserts that the circuit court erred in finding that the City violated the open-meetings provision of the FOIA, Arkansas Code Annotated § 25-19-106 (Repl. 2014). It alternatively claims that, to the extent this court might find the matter moot, the circuit court’s orders should still be reversed or vacated. We dismiss the City’s appeal as moot.
The relevant facts are these. On September 30, 2014, the SLPOA filed a complaint against the City regarding an annexation ordinance that included the subdivision of Shadow Lakes Estates, specifically, Ordinance No. 14-13, that was adopted by the City and to be submitted to its voters at the November 4 election. The complaint alleged several irregularities relating to the substance of the ordinance and its adoption by the City’s council. Specifically, the SLPOA asserted that (1) in adopting Ordinance No. 14-13, the City failed to strictly comply with Arkansas Code Annotated §§ 14-40-302 to -303 (Repl. 2013), by failing to properly read the ordinance, failing to give notice of the procedures to be followed at the special meeting during which the ordinance was adopted, and denying the right to comment via a public forum; (2) Ordinance No. 14-13 constituted a taking because the legal description contained in the ordinance did not exclude Shadow Lake resulting in a violation of Arkansas Code Annotated § 14^10-501 (b)(2) (Repl. 2013); (3) the City acted arbitrarily and capriciously in including and excluding certain properties, which resulted in irregular boundary lines, and pressing forward with annexation when it would not be able to economically sustain and maintain proper services to the annexed properties; and (4) |sOrdinance No. 14-13’s adoption violated the open-meetings provision of the FOIA, where the City’s attorney had visited with the City’s council members individually. To remedy these alleged violations, the SLPOA sought an injunction removing the ordinance from, or prohibiting the inclusion of it on, the November 2014 ballot.
A few days later, the Trustees filed a similar action pertaining to the City’s adoption of Ordinance No. 14-12; their petition against the City sought a declaratory judgment that the ordinance was invalid and an injunction enjoining the City from proceeding with the November election. The Trustees averred that, despite having received notification that their property would not be targeted for annexation, their property was included within the legal description of the tract of land included for annexation by Ordinance No. 14-12. They further asserted that the City’s reading of the ordinance was not in compliance with Arkansas Code Annotated § 14-55-202 (Repl. 1998), and that the City adopted the ordinance in violation of the FOIA where the City’s attorney admitted that he had visited with members of the city council prior to the meeting at which the ordinance was adopted. Like the SLPOA, the Trustees also sought an injunction removing the ordinance from the ballot or precluding its inclusion on the November ballot.
The City, answered both complaints and filed a motion to dismiss in each case. That same day, a hearing was held before the circuit court at which both cases were heard jointly. Some debate was had over which claims of the SLPOA and the Trustees the circuit court could hear at that time due to the fact that the ordinances had not yet been put into effect since they had not yet been voted upon. The circuit court further heard the testimony of |4Michael Hamby, who was the city attorney for the City of Greenwood.
At the conclusion of the hearing, the circuit court ruled that Mr. Hamby’s contact with four city council members prior to the council’s adoption of the ordinances at issue was in violation of the FOIA and rendered the ordinances nullities. The circuit court additionally ruled that the ordinances would not be included on the November ballot. A single order memorializing the circuit court’s ruling in both cases was filed the next day. In it, the circuit court found, in relevant part as follows:
14.The meat of this case involves the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) and whether or not there was a violation of this law. The significant facts are as follows:
• The Minutes of the August 12, 2014, meeting reflect that Mr. Hamby contacted each member of the [Greenwood City Council] as to the modifications of the annexation proceedings and/or ordinances;
• Mr. Hamby testified that he had contacted at least four (4) members of the GCC as to the modifications of the annexation proceedings and/or ordinances;
• The purpose of Mr. Hamby’s contact with the GCC members was to obtain a decision of the council as to the modifications of the annexation proceedings, or as Mr. Hamby testified, he “wanted to know how they wanted to vote”;
• Mr. Hamby further testified that he had specific conversation [sic] with at least one (1) council member as to the possible deletion of Ms. Walters’ property; and
• Mr. Hamby also testified that he conversed with another council member about deleting all or a portion of Tract D, which was done.
15. The Court’s opinion is that the above referenced facts, specifically the contacts and conversations had by Mr. Hamby with individual council members, falls squarely within the parameters of Harris v. City of Fort Smith, Arkansas, 359 Ark. 355, |5197 S.W.3d 461 (2004), which this Court is more than familiar with.
16. The meetings in this matter are subject to oversight under the Freedom of Information Act and the actions taken by Mr. Hamby, the City Attorney, violated the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106), thus rendering the Ordinances derived thereby a nullity.
17. As such, the Ordinances derived in violation of the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) shall not be included on the November 4, 2014 ballot.
The City now appeals.
As an initial matter, we must determine whether the instant appeal is actually moot given that the November 2014 election has already occurred. The City, in an alternative argument, avers that the actions against it by the SLPOA and the Trustees were moot from their inception because the ballots for the November election had already been printed and the Sebastian County Election Commission had not been made a party to either suit. Nonetheless, the City maintains, the circuit court incorrectly ruled that the City violated the FOIA, and it would be patently unfair to permit that decision to stand. Accordingly, the City asks this court to declare the circuit court’s order null and void or to remand with instructions for the circuit court to set aside its order. The SLPOA asserts that the City’s mootness argument is being raised for the first time on appeal, while the Trustees assert that any opinion from this court addressing the merits would be advisory in nature in light of the election having already occurred and the ordinances being soundly defeated.
While the City claims that the underlying suits by the SLPOA and the Trustees were moot, our examination of the record in this case reveals that the City neither developed this | fiargument before the circuit court, nor obtained a ruling on it. It is well settled that this court will not address an argument on appeal if it has not been argued before the circuit court or if a party fails to obtain a ruling from that court. See, e.g., Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. However, it is clear that the City’s appeal itself is moot.
As a general rule, the appellate courts of this state will not review issues that are moot because to do so would be to render an advisory opinion, which this court will not do. See Etherly v. Newsome, 2013 Ark. 391, 2013 WL 5595494. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. See Bd. of Trustees of the Univ. of Ark. v. Crawford Cnty. Cir. Ct., 2014 Ark. 60, 431 S.W.3d 851. We have, however, recognized two exceptions to the mootness doctrine. See Lott v. Langley, 2013 Ark. 247, 2013 WL 2460130. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. See id. Here, the City claims that the ordinances at issue were not nullities because no FOIA violation occurred. However, because the City’s November 4, 2014 election has already taken place, the issue of whether the challenged ordinances should have remained on the ballot is moot, unless one of the two exceptions to mootness applies. Neither does.
| /This court must first consider whether the issue involved is capable of repetition, yet will evade review. Examples of such cases as recognized by this court include abortion-law challenges, election-procedure cases, and cases involving various court procedures. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d -744 (2007). The instant issue is one involving the FOIA and does not fall within those examples previously recognized. Moreover, while it is certainly conceivable that the city attorney might have contact with individual council members on various issues in the future, it is highly unlikely that the particular contact at issue here would repeat itself, yet not be capable of review. Even where there is a possibility that the issue might recur, it is only a possibility and this court does not anticipate future litigation and does not issue advisory opinions. See Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). Neither is it a forgone conclusion that should it recur, it would necessarily evade review. See id. This exception therefore does not apply.
Nor can it be said that the second exception has application. A determination of the issue presented would be dependent on the specific and unique facts presented. Because of the unlikelihood that these specific facts -will recur, any decision by this court would not serve to prevent future litigation. See, e.g., Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. Indeed, even if this court were to hold that the ordinances were not nullities, the ordinances specifically provided that the annexation questions were to be. presented at the November 4, 2014 election, which has already come to pass. Accordingly, we dismiss the instant appeal as moot.
Appeal dismissed. | [
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RHONDA K. WOOD, Associate Justice
11 Cameron Bolin appeals the denial of his petition to seal his misdemeanor and felony convictions. He contends (1) that the court erred by retroactively applying the Comprehensive Criminal Record Sealing Act (CCRSA) instead of the Community Punishment Act (CPA), which was in effect at the time he committed his offenses; (2) that retroactive application of the CCRSA violates the prohibition against ex post facto laws; and (3) that even if it was appropriate to retroactively apply the CCRSA to his felonies, the records related to his misdemeanors should have been sealed. We find that the circuit court erred in retroactively applying the CCRSA to Bolin’s felony conviction, and we reverse and remand for the court to apply the CPA to Bolin’s felony conviction and the CCRSA to his misdemeanor convictions.
[gI. Background and Relevant Facts
Bolin pled no contest to two misdemeanors and one Class D felony in January 2011. He was sentenced to 90 days of probation for the misdemeanors and three years of probation for the felony. At the time of his sentencing, the Community Punishment Act allowed Bolin to petition the court to expunge the record of his offense upon the successful completion of probation. Ark. Code Ann. § 16-93-1207(b)(1) (Repl. 2006). Subsequent to Bolin’s sentencing, but before the completion of his probation for the felony, the General Assembly passed Act 1460 of 2013, known as the Comprehensive Criminal Record Sealing Act of 2013. The CCRSA created .a uniform procedure for sealing a person’s record and detailed the circumstances in which individuals were eligible to have their records sealed.
Of importance to this appeal, the CCRSA amended the CPA so that the procedure for sealing records under the CPA would be in accordance with the CCRSA. Ark. Code Ann. § 16-93-1207(b)(3) (Supp. 2013). The CCRSA requires that a person must wait five years after the completion of the sentence in order to be eligible to have the records of a Class D felony sealed as opposed to immediate eligibility for expungement upon completion of the sentence, which was available under the CPA. Ark. Code Ann. § 16-90-1406(a)(l) (Supp. 2013). As to misdemeanors, the CCRSA provides that a person becomes eligible to petition to seal those records 60 days after the completion of the person’s sentence for the offense. Ark. Code Ann. § 16-90-1405(a)(1) (Supp. 2013). The CCRSA also superseded all other inconsistent provisions of the Arkansas Code, except for |3a few exceptions that are not relevant to this appeal. Ark. Code Ann. § 16-90-1403(b) (Supp. 2013).
The CCRSA became effective on January 1, 2014. Bolin completed his felony probation ori January 19, 2014, and petitioned the court to seal all of his records.
The State neither objected nor responded to Bolin’s petition. The circuit court denied Bolin’s petition without a hearing, holding that Bolin was required to wait five years after completing his probation before the records could be sealed under the CCRSA.,
II. Preservation
Before considering the merits of Bolin’s appeal, we first consider the State’s contention that Bolin failed to preserve his arguments. As a general rule, we will not consider arguments raised for the first time on appeal, and an argument is not preserved for appellate review unless a party raises a specific objection and the circuit court rules on that objection. Gulley v. State, 2012 Ark. 368, at 6, 423 S.W.3d 569, 574. However, we have recognized an exception in situations where a party has no opportunity to present his arguments to the circuit court. Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988); Olson v. Olson, 2014 Ark. 537, 453 S.W.3d 128. As in Harrell, Bolin’s case was disposed of by the circuit court without notice, without a hearing, and without an opportunity for Bolin to present any arguments. The lack of development in circuit court was at least partially exacerbated by the State’s failure to respond to Bolin’s petition. With no opposition from the State and with Bolin believing himself to be entitled to have his records sealed under the former version of the CPA, Bolin had no reason to anticipate the State’s arguments and raise his own until the court entered its order denying his petition. |4Because Bolin had no opportunity to present his current arguments to the circuit court, he is not prevented from raising them on appeal.
III. Standard of Review
Bolin’s appeal raises issues regarding the application and interpretation of the CPA and the CCRSA. The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385.
IV. Retroactivity of the CCRSA
For his first point, Bolin argues that his eligibility to have his records sealed should be determined under the version of the CPA in effect at the time he committed his offenses and that the CCRSA was not meant to apply retroactively. The State responds that the legislature intended that the CCRSA should apply retroactively by making the CCRSA applicable to all proceedings to seal records after the Act’s effective date and specifically superseding all other inconsistent provisions of the Arkansas Code. See Ark. Code Ann. § 16-90 — 1403(a)—(b). The State further argues that even if the legislature’s intent was unclear, the CCRSA should, nevertheless, apply retroactively because it is procedural and remedial and such legislation is generally given a retroactive application.
Retroactivity is a matter of legislative intent. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 296, 9 S.W.3d 520, 526 (2000). In determining legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intends statutes, or amendments thereof, to operate prospectively only and not retroactively. Id. Only when the General Assembly [^expressly provides that an act should be applied retroactively will we do so. Elders v. State, 321 Ark. 60, 67, 900 S.W.2d 170, 174 (1995). We have held that, in the absence of a provision stating that an act will apply retroactively, the act will apply prospectively only. State v. Murphy, 315 Ark. 68, 71, 864 S.W.2d 842, 844 (1993). Therefore, unless it expressly states otherwise, we presume the legislature intends for prospective application of its laws, and any interpretation of an act must be aimed at determining whether retroactive effect is stated or implied so clearly and unequivocally as to eliminate any doubt. Bean, 340 Ark. at 296, 9 S.ipd at 526.
Where the Mnguage of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used, and we construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Barclay v. First Paris Holding Co., 344 Ark. 711, 718, 42 S.W.3d 496, 500 (2001). We will reconcile provisions within an act to make them consistent, harmonious, and sensible in an effort to give effect to every part. Roeder v. United States, 2014 Ark. 156, at 4, 432 S.W.3d 627, 631.
In reviewing the statutory text of the CCRSA, we find no general expression of intent that the whole act should apply retroactively. However, we do find a specific expression of intent with regard to misdemeanor violations. Section nine of the CCRSA amended Title 16, Chapter 90 of the Arkansas Code to provide that “a person is eligible to file a uniform petition to seal a misdemeanor or violation under this section even if his or her misdemean- or or violation occurred before January 1, 20U.” Ark. Code Ann. § 16-90-jfi1405(c) (emphasis added). With this language, the legislature clearly intended to make the CCRSA retroactive to govern the sealing of records related to misdemeanors.
In contrast, no such intent is expressed related to the sealing of felony records. There is no similar provision that indicates that an individual can file a petition to seal felony records under the CCRSA even if the felony occurred before the CCRSA’s effective date. See Ark. Code Ann. § 16-90-1406. The express designation of one thing may be properly construed to mean the exclusion of another. Larry Hobbs Farm Equip., Inc. v. CNH Am., LLC, 375 Ark. 379, 385, 291 S.W.3d 190, 195 (2009). Applying this principle and reading the; provisions of the CCRSA as a whole, we conclude that the legislature expressly designated that the CCRSA should be retroactive with regard to misdemeanors but chose to exclude that retroactivity with regard to felonies. Had the legislature intended for the CCRSA to govern the sealing of felony records for offenses occurring before January 1, 2014, it could have included language to that effect, as it did for misdemeanors in section 16-90-1405(e).
V. Whether the CCRSA Should Apply Retroactively If It Is Procedural and Remedial
In reaching the conclusion that the legislature intended for the CCRSA to apply retroactively to misdemeanors but not felonies, we are mindful of the State’s argument that the CCRSA should be retroactively applied because it is procedural and remedial legislation. The rule creating the presumption against retroactive application of a statute does not ordinarily apply to procedural or remedial legislation, and procedural legislation is more often given retroactive application. Bean, 340 Ark. at 297, 9 S.W.3d at 520. However, we need not determine whether the CCRSA is actually procedural. Regardless |7of the answer to that question, it would not allow us to simply disregard the otherwise clearly expressed intention of the legislature. As in all statutory-construction cases, the cardinal rule is to give full effect to the will of the legislature. State v. Pinell, 353 Ark. 129, 134, 114 S.W.3d 175, 178 (2003). The legislature specifically differentiated between misdemeanors and felonies by choosing to make the CCRSA retroactive as to one, but not the other. The fact that we have retroactively applied procedural legislation in the absence of clearly expressed legislative intent does not mean that we will do so in contravention of clear legislative intent. Having determined that the legislature expressed its intention to make the CCRSA retroactive as to some offenses but not others, we cannot disregard that intention and override the legislature to apply the entire Act retroactively. To do so would be to substitute our judgment for that of the legislative branch, which we cannot do. See City of Conway v. Housing Authority of City of Conway, 266 Ark. 404, -409, 584 S.W.2d 10, 13 (1979). Accordingly, we hold that the CCRSA does not retroactively apply to Bolin’s felony conviction, but that the CCRSA does retroactively apply to Bolin’s misdemeanor convictions.
VI. Whether Bolin Is Entitled to Have His Misdemeanor Records Sealed Under the CCRSA
The last argument that we must address is whether Bolin’s misdemeanors qualify to be sealed under the CCRSA. According to the State, the CPA, as amended by the |sCCRSA, requires that any order placing a defendant on probation must explicitly provide that the defendant is being placed on probation “under the provisions of this subchapter[.]” Ark. Code Ann. § 16-93-1207(a)(l)(D). The State contends that Bolin’s sentencing order did not specifically state that he was being sentenced under the CPA for his misdemeanors.
The State’s argument is flawed. We have previously stated that “it is irrelevant that the judgment and disposition order does not specifically recite that Appellant was sentenced under section 16-93-1207, as such recitation is not required to be eligible for expungement under the [Community Punishment] Act.” Fulmer v. State, 337 Ark. 177, 181, 987 S.W.2d 700, 701-02 (1999). In Fulmer, we explained that the circuit court’s ability to expunge a record under the Community Punishment Act was not dependent upon the technical notation on the sentencing order, but upon whether the requirements of the expungement statute had been met. See id. at 181, 987 S.W.2d at 701-02. As Fulmer illustrates, the key to whether a court has the ability to expunge a record is whether the facts of the petitioner’s case line up with the requirements outlined by the legislature in the expungement statute.
| ^Finally, as discussed, supra, the CCRSA is retroactive as to misdemeanors, and a person may petition to have his records sealed under the CCRSA even if the misdemeanor occurred before the CCRSA became effective. As to his misdemeanors, and assuming he has satisfied the statutory requirements, Bolin is now eligible to have his records sealed under the CCRSA. Nothing in the text of Arkansas Code Annotated section 16-90-1405 would make Bolin’s eligibility under that section dependent upon a notation in the judgment and disposition order as to whether Bolin was sentenced under the CPA or not. Bolin’s misdemeanors are eligible for sealing under the CCRSA if the statutory requirements of Arkansas Code Annotated section 16-90-1405 are satisfied. However, the circuit court denied Bolin’s petition based on section 16-90-1406, the felony provision. Therefore, we must reverse the circuit court on this point and remand for the circuit court to consider whether Bolin’s misdemeanor records should be sealed according to the requirements of section 16-90-1405.
VII. Conclusion
Because the legislature did not intend for the CCRSA to apply retroactively to Bolin’s felony conviction, the circuit court erred in concluding that Bolin was required to wait five additional years after the completion of his probation before petitioning the court to expunge his record. Under the version of the CPA in effect at the time of his sentencing, Bolin was eligible to petition the court to expunge his record upon the completion of his probation; therefore, we reverse the decision of the circuit court and remand the case for the court to consider whether the records of Bolin’s felony conviction should be sealed according to this version of the Community Punishment Act.
| ,nBolin’s entitlement to have his misdemeanor records sealed should have been considered under section 16-90-1405; therefore, the circuit court’s denial of Bolin’s petition to seal his misdemeanor records is also reversed and remanded for the circuit court to consider whether Bolin has satisfied the requirements of section 16-90-1405.
Reversed and remanded.
Hannah, C.J., and Wynne, J., concur in part and dissent in part.
. Because we hold that the CCRSA is not retroactive as to Bolin’s felony conviction, this moots his argument that such application to his felony would violate the Ex Post Facto Clause. Bolin did not refer to his misdemeanor convictions in this argument, and it would be unnecessary for us to embark on the analysis of whether applying the CCRSA to his misdemeanors is the type of disadvantage prohibited by the Ex Post Facto Clause because it is clear that Bolin would suffer no disadvantage whatsoever by such application.
. We note that even had we found that a defendant’s judgment order must refer to a specific statute, Bolin’s judgment and disposition order provided at the end of all of his charges that ”[t]he defendant shall be sentenced under Act 531 of 1993,” which is the CPA.
. The State mistakenly relies on State v. Brown, 2010 Ark. 483, 2010 WL 5059593, and its holding that the court cannot expunge a defendant's record if the defendant is not specifically sentenced under a statute providing for expungement. Brown is inapposite because the petitioner there was ineligible for expungement due to the nature of her offense. The outcome in Brown was not dependent on anything that was written in her sentencing order. | [
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BRANDON J. HARRISON, Judge
| ¶ Sharon K. Barton, Robert Franklin Bryant, Gallie Thomas Bryant, and Frances Paulette Bryant (the Bryants) and Bobby and Sheila Brockinton (the Brockin-tons) are adjacent landowners in a boundary-line dispute in Faulkner County. A previous final-order issue has been resolved, so the-merit of the circuit court’s decision is now before us.
I.
In 2012, the Bryants sued the Brockin-tons, alleging that they had .destroyed a fence, trespassed, and built three storage units on the Bryants’ property. The Bryants asked for $40,000 in damages and for the court to eject the Broekintons from their property. The circuit court held a two-day bench trial in April 2014 and then entered judgment for the Broekintons. The Bryants’ first point on appeal is that the court erred in accepting the | ^Broekintons’ proposed boundary line. The testimony of three surveyors—James Ross and Scott Foster for the Bryants and Tim Tyler for the Broekintons—is particularly important to the decision. Though much of the long testimony is not entirely clear, here is a summary of the surveyors’ opinions on the boundary-line question.
A. James Ross
James Ross testified that he performed a survey for the Bryants in the mid-to-late 1990s (in section 7) and that he also did a survey in 1992 for the Revis property in section 18. Ross used a monument he found one mile south to establish the range line in the southeast quarter of section 18. He also established “the next corner up,” which was the corner directly north along the range line. He agreed that the range line he established in 1992 (the “Ross survey”) was also the boundary line of the Bryant property. According to Ross, “In this case, the west [boundary] line of the Bryant property is a range line. That [range] line is supposed to be straight for six miles. It is not supposed to bend for six miles.” He agreed that the line had been established “before the Brockintons [sic] got involved or there was any development in [the] area.”
Ross further testified that he again ascertained the disputed boundary line in 2009 (when he did a survey for the Bryants) by establishing the range line using the same section corner as he did in the 1990s. Ross testified that the. corner was “in the middle of [highway 36]” and that it “just takes 15 minutes maybe to shoot that to recheck that.” The corner | /‘establishes the same range line running in a north/south direction that is this border of the entire Bryant property.”
Ross conducted a third survey dated 18 August 2011, at the Bryants’ request, and it showed that two of the Brockintons’ storage buildings and part of a third building were located east of the range line (the property boundary), according to Ross. This survey was admitted as Plaintiffs Exhibit 6. Ross confirmed that it was “the same range line two times done before.”
A line drawn on the Ross survey (Plaintiffs Exhibit 6) is labeled the “Tyler Line.” The southernmost point on the “Tyler Line” is labeled “PK Nail” and next to it is an arrow with these words: “Tyler used this point as being the SE Corner SE 1/4— SE 1/4 Section 12, T-60N R-12-W.” Ross described the PK nail shown on the Ross survey as “a little magnetic nail about the size of your thumb.” He said that it was a type of monument or landmark that is normally found in survey work and that he found the PK nail when he did the previous two surveys. Ross concluded that the PK nail was too far to the east because its location did not fit -with the other established comers or reference marks. He explained that, in Arkansas, the point of origination for all surveys is where the mouth of the Arkansas River and the St. Francis River intersect, having been established following the Louisiana Purchase. (This origination point is at the Fifth Principal Meridian.) He also testified that the range line he established lines up with the original range lines established in the Louisiana Purchase.
According to Ross, his range line was accurate because ‘You can’t just find some corner and say that’s it. You better check with other corners to make sure everything’s in ^accordance.” In Ross’s opinion, the property line in Tyler’s survey could not be supported and was not correct because it could not be tied in to other corners and monuments like his range line could.
On cross-examination, Ross agreed that prior to 1992 he had not surveyed an area using this range line. He could not say whether prior surveyors used what he considered to be the correct range line or whether they had used the PK nail. Ross agreed that a surveyor would yield to courses and distances in prior survey work if “there are accepted corners,” but he did not agree that the PK nail was an accepted corner on the range line before he conducted his first survey in the 1990s. Even if the PK nail was an accepted monument “for years prior to the early ’90s,” Ross said that he would not have to yield to it because it did not align with “established and accepted corners.” When asked, “Back to original land patents and surveys, you cannot say whether or not that this PK nail was utilized for the range lines, can you?” he answered, “Possibly I cannot.” Ross nonetheless denied that the PK nail was a correct monument to use to establish the range line.
On redirect, Ross agreed that the range lines were established in the 1800s, that they were fixed, and that they cannot be changed. And “going all directions, I can’t find anything else but what I’ve got.”
On recross-examination, Ross agreed that he would probably yield if “no one else has ever utilized the range line and everybody’s utilized the PK nail even though incorrect.” He could not say that the Tyler line was established in litigation in 1999. Ross agreed that there was an older fence along the Tyler line when Ross had conducted his first survey.
|¡;On further redirect examination, Ross confirmed that “this is a well-established range line—established many, many, many years ago” and that his location of the range line was the correct one.
B. Scott Foster
Professional land surveyor Scott Foster testified next. He was hired by the Bryants “to verify the range line which was established by either Mr. Ross or Mr. Tyler to verify which one was correct.” Foster explained that he reviewed Ross’s surveys, Tyler’s surveys, arid surveys done by the state highway department. Foster traced and retraced numerous corners using the rules established by the Bureau of Land Management to locate the proper location for the range line, according to the GLO (General Land Office) maps or the original surveys that were done in the 1830s. He concluded that the range line “was more in line of where the Ross survey showed it to be.” He said that he did not know how or why Mr. Earnhart (Tyler’s predecessor) or Tyler’s line “jogged over to the east” and that range lines cannot be altered in their direction; they could not be altered to go east or west.
Foster explained that the PK nail Tyler based his survey on was “27 feet and some change east of where the range line truly is.” When asked if the PK nail had any significance as a monument or landmark, Foster said:
⅛ obviously, a monument because it’s referenced in a survey, Mr. Earn-hart’s survey. Right or wrong ... It could be a traveler’s point. It could be a property corner. It could be intended to be anything. If it’s called to be on the range line, it’s not.
He explained that the state highway department had to establish the range line in order to do the “right of way taking off the new highway.” In his words, “They have the potential for taking people’s property so they do a very thorough job.” Foster said that the | nhighway department’s range line was the same range line that he had established and that it was the correct one. Here is how he explained his method:
When we ran this line [the Ross line] as I mentioned earlier, from the—the point at the south, which was accepted, we then went east and west in both directions as a check. That’s not proper methodology for^ reestablishing a range line but it gives me some ability to check and see if it’s here or if it’s 27 feet to the east. We went east for two miles. We found corners, brought ’em back in, proportioned ’em out by the GLO. They were within feet. We went to the west and did the same thing and came back in this direction. We were within a couple of feet, actually we were less than a foot, coming from this direction. That is overwhelming evidence to me that the line should be where we have it in a straight line.
(Emphasis added.) When asked, “The original established range line?” Foster replied, “Yes, sir.”
C. Tim Tyler
Surveyor Tim Tyler, who testified for the Brockintons, said that he performed a survey for Bobby Brockinton in May 2011 but revised it in July 2011. The Tyler survey was admitted as Defendant’s Exhibit 2. Tyler also did a survey in 1998. Tyler agreed that his north/south line was approximately 27 feet east of Ross’s line. Tyler’s survey notes that Ross’s line was established in 1996. Tyler also referenced a survey his father did in 1994, one Earn-hart did in 1998,,and a Ross survey from 1994. Tyler said he used the PK nail to establish the range line (the “Tyler line”). According to Tyler, Earnhart noted on his survey that Ross had used the PK nail in 1990, though Tyler did not have a copy of the 1990 Ross survey. When questioned by the court whether Ross used the PK nail in his 1990 and 1994 surveys, Tyler responded that he “[could not] say it was a PK nail then” but that Ross had used the same point then that Tyler had- used in this case.
17Tyler stated that he had a 1986 survey by Earnhart showing a corner where the PK nail'was located calling it “final'iron pin.” In Tyler’s words, “It’s the exact same corner—southwest corner [sic] of Section 12.” Tyler possessed an old book by B.F. Stermer, the county land surveyor in the early 1900s. Tyler said that he and his father used this book and the note" references from 1902 to 1910. According to Tyler, he and his father did a' survey in 1991 that referenced the same corner as “being on the range linej there’s jogged corners.” He also said that he did not know whether it was the true range line.
Tyler’s corner was the northeast comer of section 13, where that PK nail is, but “back then” it was an iron pin (section 13 is in the Range 12 West township but abuts -section 7 in the Range 11 West township). He said the “jogged corners as you go up through there” were based on Stermer’s notes from the early 1900s. Relying on those notes, Tyler said that the GLO notes from when the original surveys were done in the 1860s and 1860s were on file with the state and that Stermer had set . the corners based-on the GLO notes. In other words, according to Tyler, county surveyor Stermer used GLO notes to derive the mark that is now the PK nail. Tyler said that Stermer must have set the location of the PK nail before 1960.
Tyler also testified that he and his father had used the same PK nail corner— the northeast corner of section 13 and the southeast corner of section 12—in 1985. Tyler said his field notes show an IP (iron pin) and show a “jog of 56 feet and 10-56 foot and tenth jog there that goes back further west or east.” According to him, no survey, before Ross’s 1996 survey used the range line Ross had marked. In Tyler’s view, Stermer’s notes from the early 1900s established the Tyler line as the range line.
[ aHere is a colloquy that occurred on cross-examination:
Bryants’ Attorney: Let’s talk a little bit about the course of surveying, you, - you know, it’s been educational because you said you don’t know if the Ross line is the correct range line or not because that’s not what matters, right?
Tyler: I can’t say that that’s what matters. I can’t say that it’s the correct line or not. What we based our line off of is previous surveys that had been established prior to when we surveyed. Also, previous notes from earlier surveyors like such as Mr. Stermer, such as Mr. Ross, such as Mr. Earn-hart and accepted monuments in the area. We did not break the whole section down and re-establish the range line. It was done in the 1800’s. You can go back and re-establish the range line again if you want to. I have no-I have no reason to think that it might move further west. I’m not sure of that but that’s not my call. I can’t-I can’t say that it is or it ain’t. I’m just going based upon accepted land surveys and notes previously.
When asked about Foster’s testimony that the PK nail location hadn’t been used prior to Earnhart’s survey, Tyler responded that many surveys were never filed in the courthouse and the lack of filing does not destroy the survey’s legality.
Tyler testified that he was the Faulkner County surveyor, and when questioned whether he was “asked to do a survey and that survey implicated this range line, if you were asked to do it; would you find the corner to be the same corner where the PK nail is located presently,” he replied, “I can’t say for sure. If you ask me to—to establish the range line.” He also testified that he would place the Tyler line along the PK nail based on the previous surveys and notes; he confirmed that to be an accepted practice, but acknowledged that the ultimate call was to be done by “the man in the robe.” Tyler also recognized the possibility that the Ross line could be the original range line. And he admitted that he did not check |9his line from different directions; he based his line off a corner that had been established in previous surveys.
II.
The Bryants’ first point specifically argues that the circuit court’s finding that they failed “in their burden to establish by a preponderance of the evidence that the boundary line they claimed between the parties’ property was the true boundary” is clearly erroneous. In their view, the circuit court erred when it relied on Tyler’s survey because it was drawn from an incorrect starting point—the PK nail in the road. In other words, Tyler’s survey method was clearly wrong. The Brockin-tons responded, “The decision is no longer whether the Ross survey or the Tyler survey is better; the decision on appeal is whether the choice of the Tyler survey was clear error.... This entire [case] may be as simple as the trial court disregarding Ross’s testimony because it thought he was being untruthful.”
A. Boundary-Line Law
The Bryants had the burden to prove the location of the boundary line by a preponderance of the evidence. See Mason v. Peck, 239 Ark. 208, 210, 388 S.W.2d 84, 85 (1965) (burden of proof). We do not disturb a circuit court’s findings of fact in a boundary case unless they are against the preponderance of the evidence. Id. See also Ark. R. Civ. P 52(a) (2016) (A circuit court’s fact findings during a bench trial “shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence.)”). 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.
| inThe Brockintons own the land west of Range 11 and the Bryants own the land to the east in this dispute. Range lines are set by the public land survey system and cannot be changed by landowners, surveyors, or the courts. See Walter G. Robillar & Lane J. Bouman, Clark on Surveying and Boundaries § 21.08, at 683 (7th ed 1997). If a private survey conflicts with the one made by the government when the patents and grants were originally issued, preference must be given to those made by the government. Morrow v. White, 12 Ark. App. 16, 19, 670 S.W.2d 459, 461 (1984). New surveys cannot affect valid, bona fide private property rights acquired under old surveys. See Mo. Pac. R.R. Co. v. Sale, 197 Ark. 1111, 1114-15, 127 S.W.2d 133, 135 (1939). Regarding the significance of GLO surveys and any subsequent resurveys, this court has written:
At the time of the Louisiana Purchase this area was a vast wilderness, sparsely populated and with no integrated system of land descriptions. Early in the nineteenth century Congress authorized the General Land Office to survey and plat the entire area in order to give each parcel of land in the public domain a specific and identifiable location which would be subject to relocation by survey at any time. The field notes and plats of those surveys are carefully preserved and with few exceptions all lands in this area were disposed of by the Federal Government with reference to these surveys. Due to errors which were bound to occur, these surveys did not always result in perfect square mile sections of 640 acres with parallel boundaries. Survey parties did not always meet at the point previously calculated and some of the established section corners did not-coincide with adjoining ones.
These approved GLO surveys formed the basis for the description of lands when disposed of by the government and any errors, including variances from prescribed courses, distances of acreages, were merged into the government grants. A patent or other original conveyance made with reference to a subdivision conveyed those lands which the General' Land Office Plat showed it to contain. The purpose of subsequent surveys in locating corners and boundaries is not to correct any error or variance of the original surveyor but is to retrace his steps by use of his field notes and plats and to locate the comers where he located them.
Brann v. Hulett, 2013 Ark. App. 687, at 6, 2013 WL 6097984 (internal citations omitted).
To prevent • the public-land-survey boundary lines from changing, an Arkansas county surveyor is required to keep a record book’of his surveys’ original 1800s surveyors’ field notes that are used to locate the original corners or boundary markers and those records are available to the public. Ark. Code Ann. § 14-15-709 (Repl. 2013); Ark. Code Ann. §§ 22-5-701, -703, -704 & -709 (Repl. 2016). A certified copy of the county surveyor’s record constitutes prima facie evidence in any court of record in this state. Ark. Code Ann. § 14-15-712. The Arkansas Supreme Court has held that certified copies of the original surveys and field notes are weighty evidence of a legal boundary. See Russell v. State, 97 Ark. 92, 133 S.W. 188 (1910) (criminal case of a defendant stealing and killing a sheep; question was whether killing occurred in Arkansas or Missouri).
The location of a boundary line is usually a question of fact. Jennings v. Burford, 60 Ark. App. 27, 32, 958 S.W.2d 12, 15 (1997). A survey is not color of title but is just one form of evidence for a court to consider when determining a legal boundary. See Brann v. Hulett, 2013 Ark. App. 687, 2013 WL 6097984.
B. The Circuit Court Was . Not Clearly Wrong
In this case no party introduced certified copies of original surveys, field notes, or a certified copy of the county surveyor’s record. And as we mentioned earlier, no party’s surveyor claimed to mark the Range 11 West line using an established method for reestablishing range lines. James Ross could not say, “back to original land patents and surveys”, whether the PK nail (Tyler’s line) was used for the range line. True, Ross checked his work by using two section corners that were one mile north and south of where he |^established his starting. point (the southwest corner of the SW 1/4-SW 1/4 of section 7 Township 6 North, Range 11 West) to say that his line was the true range line. Scott Foster did more by going in four directions—north, south, east, and west—to check whether Ross’s line or Tyler’s line was correct. But Foster admitted that it was “not [a] proper methodology for reestablishing a range line[J” Tim Tyler said that he did not reestablish the range line either or know where it was., So no witness conclusively established the original, range line according to the original federal patents and, survey notes. There was some testimony from Foster that he had found the corners according to the GLO maps or. the original surveys done in the 1830s; and Tyler said that he used a corner that had been established from the GLO maps and original field notes. In other words, all three surveyors drew the line based on what they contended were undisputed points in space (known corners).
Under the law, the circuit court is required to credit a survey that relies on GLO methods and practices over one tout doesn’t. See Brann, 2013 Ark. App. 687. But that is not the case here because the two competing boundary lines (the Ross/Foster line and the Tyler line) were drawn by surveyors who all claim to have based their methods and practices on GLO principles. As it stands, this case falls into the general category of when we .defer to the circuit court’s determination of the credibility, of competing surveys. Watkins v. Paragould Light & Water Comm’n, 2016 Ark. App. 432, 504 S.W.3d 606. In this situation, we will not reverse the circuit court’s .judgment for the Brockintons. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141, 147, 265 S.W.3d 151, 155 (2007) (citing Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Given the deferential standard of review and the so-called “dueling.experts,” we affirm the circuit court’s conclusion that the Tyler survéy was the closest approximation to the original range line and was therefore the boundary line.
III.
For their second point on appeal, the Bryants' argue that the Brockin-tons failed to call Tim Tyler’s predecessors (Tyler’s father and Earnhart) as witnesses who could have purportedly shown that the PK nail was used in the past. They argue that the circuit court should have drawn an advérse inference from this omission, A fact-finder may draw an adverse inference when there is identified relevant evidence in the possession of a party in whose interest it is' to produce it and who fails to do so without satisfactory explanation. Slaughter v. Capitol Supply Co., 2009 Ark. 221, at 8, 306 S.W.3d 432, 437. But there'is no inference on appeal that the testimony of a witness under the control of a party would be unfavorable to that party when the witness is not present at the trial and is not called to testify. Jones v. Brown, 242 Ark. 537, 540, 414 S.W.2d 618, 620 (1967) (question for the jury). We do not reweigh the evidence here, meaning we do not credit or discredit the parties’ decisions to call or not call witnesses, Id. We therefore decline to favor the Bryants’ second point pn appeal.
For their third point the Bryants argue that the court erred in excluding a diary of a deceased family member. We need not go into detail on this point because the diary was offered to show that the Brockintons had notice of the boundary dispute and that the Bryants claimed ownership of the property. The circuit court determined that the Brockintons were |14the legal owners of the property according to the Tyler survey, and -we affirm that determination. Because we have affirmed the circuit court’s boundary-line decision, we do not need to decide whether the court abused its discretion in excluding the diary because that issue was relevant to counter the Brockintons’ claims of adverse possession and boundary by acquiescence.
Affirmed;
Vaught arid Brown, JJ., agree.
. The term "range” has been defined this way: ‘‘[i]n U.S. government surveys, a strip of public land running due north to south, consisting of a row of townships, at six-mile intervals.” Black's Law Dictionary (10th ed. 2014), Westlaw (current through the 10th edition). | [
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LARRY D. VAUGHT, Judge
11 Appellant Lance Harjo appeals his conviction by a Polk County jury of trafficking in methamphetamine, possession of drug paraphernalia, simultaneous possession of drugs and firearms, maintaining a drug premises, illegal use of a communication device, possession of a defaced firearm, and possession of marijuana with intent to deliver. Specifically, he challenges the finding that he constructively possessed the drugs and firearms found during the search and that security cameras placed around the property constituted “communications devices” under Arkansas Code Annotated section 5-64-404. We affirm on both points.
On January 5, 2016, members of the 18th West Judicial District Task Force and the Polk County Sheriffs Department executed a search warrant at Harjo’s" home. At trial, the evidence established that the officers were familiar with Harjo and knew that he occupied the residence. When officers arrived to search the home, Harjo was inside an adjacent shop building with two other individuals. Xabrina Kahn Cunningham, who officers also knew to be | giving with Harjo, was asleep in the master bedroom. As Cunningham was being led away by the officers, Harjo stated that anything they found in their search was his.
The search of Harjo’s home focused largely on the master bedroom that, based on the clothing found there, appeared to be shared by Harjo and Cunningham. The bedroom was described in the trial testimony as having a shallow closet with doors that had been removed, in which a desk had been placed. In plain sight on the desk or beside it were various bills addressed to Harjo (indicating that he resided in the home), firearms (assault rifles, a shotgun, and a handgun), ammunition, a digital scale, night vision goggles, small quantities of packaged marijuana, various pills, and “a lot of methamphetamine” packaged in a Ziploc bag and in red Solo cups. Inside the desk, they found a plastic bag containing a substance that appeared to be marijuana, another scale, devices used to smoke methamphetamine or marijuana, and a Ruger P-95 semiautomatic pistol with identifying serial numbers that had been drilled out. Inside the adjacent shop building, officers found a safe, which they seized. After obtaining a second search warrant to open the safe, they found cash, a firearm, and marijuana and methamphetamine in small plastic bags.
Liza Wilcox, a forensic chemist with the Arkansas State Crime Laboratory, testified that she tested various items seized during the search of Harjo’s residence. Wilcox testified that the materials tested were positively identified as marijuana and methamphetamine. Moreover, a waxy substance obtained in the search contained THC, and the pills contained hydrocodone and oxycodone. Once she had established the presence of methamphetamine in an aggregate quantity of over approximately 300 grams, she did not test the remaining drug ^contraband because the statutory presumption for trafficking is only 200 grams. Ark. Code Ann. § 5-64-440(b)(l) (Repl. 2016).
Harjo was convicted and filed a timely notice of appeal. He raises two challenges to his convictions: that there was insufficient evidence to establish constructive possession and that the security cameras around his home were not communications devices pursuant to section 5-64-404. Both of Harjo’s points on appeal are, essentially, challenges to the sufficiency of the evidence.
When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the State, considering only evidence that supports the verdict, and affirms if substantial evidence, direct or circumstantial, supports the verdict. Alexander v. State, 78 Ark. App. 56, 62, 77 S.W.3d 544, 547 (2002). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resorting to speculation or conjecture. Id For circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence, but whether it does so is left to the jury alone to determine. Williams v. State, 338 Ark. 97, 106-107, 991 S.W.2d 565, 569 (1999).
Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Franklin v. State, 60 Ark. App. 198, 201, 962 S.W.2d 370, 372 (1998). Constructive possession can also be inferred when the contraband is in the joint control of the accused and another. Id. However, | Joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. In such cases, the State must prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. Control over the contraband can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Nichols v. State, 306 Ark. 417, 420, 815 S.W.2d 382, 384 (1991). Furthermore, jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. Bridges v. State, 46 Ark. App. 198, 202, 878 S.W.2d 781, 784 (1994). Jurors are also entitled to draw any reasonable inference from circumstantial evidence to the same extent that they can from direct evidence. Shipley v. State, 25 Ark. App. 262, 267, 757 S.W.2d 178, 181 (1988).
We are satisfied that substantial evidence was presented at trial .to support the jury’s finding that Harjo constructively possessed the contraband found in the home. First, officers' testified that they were familiar with Harjo and had prior knowledge that he lived at that address. Second, bills in his name were found in the bedroom along with men’s clothing. Harjo was physically present at the residence when officers arrived. Finally, and most notably, Harjo told officers that whatever they found in their search of the home belonged to him. Therefore, we hold that substantial evidence supports the jury’s finding that Harjo exercised care, control, and management over the contraband and affirm on this point.
Harjo’s second point on appeal challenges the sufficiency of the evidence for his conviction for using a communication device to facilitate drug-related activity pursuant to | ¡Arkansas Code Annotated section 5-64-404. The only communication devices alleged to have been used were several security cameras positioned around the home that transmitted images to a multiplex video monitor located on the desk in the master bedroom (the same desk-where the contraband was found). Harjo claims that the video cameras do not meet the statutory definition of a “communication device.” We disagree. Arkansas Code Annotated section 5-64-404, states, in part:
(a)(1) As used in this section, “communication device” means any public or private instrumentality used or useful in the transmission of a writing, sign, signal, picture, or sound of any kind.
(2) “Communication device” includes mail, telephone, wire, radio, and any other means of communication.
(b) A person commits the offense of unlawful use of a communication device if he or she knowingly uses any communication device in committing or in causing or facilitating the commission of any act constituting a:
(1) Felony under this chapter[.]
Id. (emphasis added).
Here, there can be no dispute that the cameras positioned around the home were used or useful in the transmission of a picture back to the monitor. The fact that they are not specifically listed in section (a)(2) is not dispositive because that section includes the catchall phrase “or any other means of communication.” Under the plain language of the statute, security cameras that transmit images to a monitor qualify as communication devices.
On appeal, Harjo also argues that the cameras were not used in committing or facilitating the drug offenses for which he was convicted. Harjo argues that the cameras were simply used for home security, not to commit or facilitate a crime. At trial, however, Harjo never argued that the cameras were used for legal purposes rather than to facilitate his crimes. |fiHe only contested whether they met the statutory definition of a communication device, not whether the State had presented sufficient evidence to support each element of the offense. Our law is clear that a party is bound by the scope and nature of his direeted-verdict motion and cannot change the grounds on appeal. Plessy v. State, 2012 Ark. App. 74, at 3-4, 388 S.W.3d 509, 513.
Affirmed.
Harrison and Brown, JJ., agree.
. Harjo’s second point on appeal hinges not on a question of statutory interpretation but on whether there was sufficient evidence to meet the statutory definition. | [
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N. MARK KLAPPENBACH, Judge
hThe City-of Tontitown appeals from an order of the Washington County Circuit Court finding that it had failed to take substantial steps to provide requested municipal services to property owned by ap-pellee First Security Bank (the Bank). On appeal, Tontitown argues that the circuit court lacked subject-matter jurisdiction in this matter, that the circuit court erred in granting judgment to the Bank, and that the circuit court erred in refusing to rule on Tontitown’s Rule 52(b) motion. We affirm.
The Bank owned property in Tontitown that bordered Springdale on its' eastern boundary and Highway 412 on its northern boundary. The northern 15.64 acres was zoned commercial and partially developed; the southern 22.9 acres was zoned residential and was undeveloped. The Bank sought to detach its property from Tonti-town and seek annexation into Springdale under the detachment-annexation statutes, codified at Arkansas Code Annotated sections 14-40-20Ó1 et seq. (Repl. 2013 & Supp. 2015), which provide the 12procedure for the annexation of land into an adjoining municipality in order to obtain municipal services. Before annexation is allowed, the municipality in which the land is located shall have an opportunity to provide the additional services. Ark. Code Ann. § 14-40-2002(a)(2). Pursuant to this statute, the Bank sent a letter to the mayor of Tonti-town in August 2014 requesting that Tonti-town commit to providing the additional services of adequate fire protection, adequate police protection, adequate ambulance services, water and sewer services, and a public road.
Arkansas Code Annotated’ section 14-40-2002(b)(l)(D) provides that within thirty ’ days of the request, .the municipality must make a commitment in writing to the landowner to take substantial steps, within 180 days, toward providing the additional services and, within each thirty-day period thereafter, to continue taking steps to demonstrate a consistent commitment to provide the service within a reasonable time, as determined by the kind of services requested. The landowner must take appropriate steps to make the land accessible to the service and comply with reasonable requests of the municipality that are necessary for the service to be provided. Ark. Code Ann. § 14-40-2002(b)(l)(D)(iii). The landowner may request the annexation of the land into the other municipality and thereby detach the land from the boundaries of the municipality in which the land is currently located if the municipality in which the land is located fails to execute a commitment to services within ^thirty days after the statement is filed or the municipality executes the commitment .to services but fails to take the action required under subdivision (b)(1)(D) of this section. Ark. Code Ann. § 14-40-2002(b)(2).
Tontitown responded within thirty days with a letter reciting its commitment to take substantial steps toward providing the additional' services as required by the statute. The letter then stated that Tonti-town “has already made all of the requested services available to the referenced property.” The letter further stated in part that
[t]he City is fully committed to providing the requested services to the property. As such, it is requested- that a more definite statement be filed with the City, specifically describing the nature and scope of each , of the services mentioned in your statement, and which you are not currently receiving. Though all of the requested services are currently available to the property, the City requires more information to ensure that the services are properly provided and to correctly inform First Security Bank of the costs and duties associated with their provision, and for which it will be responsible. Lastly, if First Security Bank believes that any of the services provided are inadequate, please also include a more definite statement that specifically describes the nature and scope of each perceived inadequacy.
The Bank did not respond' to the letter. In December 2014, the Bank filed a petition for declaratory judgment against Tonti-town. The Bank detailed its difficulties in selling the property due to' Tontitown’s allegedly inadequate municipal, services and claimed that Springdale was willing to annex the property and provide the requested services. The Bank claimed that Tontitown’s contradictory letter did not constitute a commitment as required by .Arkansas Code Annotated sectipn 14-40-2002(b)(1)(D), Alternatively, if Tontitown had made a commitment, the Bank alleged that Tontitown had failed to begin taking any steps within 180 days as required by the statute. The Bank requested a declaratory judgment that |/Tontitown had failed to comply with Arkansas Code Annotated section 14-40-2002(b)(l)(D) . under either alternative and that the Bank was thus entitled to detach the property and seek annexation into Springdale.
■ A bench trial was held in September 2015. Tonya Patrick, a vice president at the Bank, testified that the Bank obtained the property through a foreclosure action in 2011 and that responses from potential buyers indicated that it was a “dealbreaker” that the property was located in Tonti-town. She said that some services were not provided by Tontitown and some were not up to the caliber of services provided by Springdale and that this detracted from the value of the property. Patrick said that Tontitown had not taken any steps to fulfill the- commitment it had made, She testified that the Bank • had obtained water and sewer services for the improved commercial portion of the property only after the ■Bank paid to have a sewer line installed along Highway 412 up to the property and then onto the property. She said that Ton-titown had not been able to provide the sewer line up to the Bank’s property.
Jack Beckford, the mayor of Tontitown when the Bank’s request was made,' testified that he did not think there were any services not being provided. He did not contact the city’s department heads to discuss the services when he received the Bank’s request. Paul Colvin, Tontitown’s mayor since January 2015, .testified that specific-requests had not been made for work on the property. James Clark, public works director for Tontitown, testified that he was not asked by either mayor to respond to the Bank’s request and that there had | ¿been no new services provided to the property.
The circuit court entered an order granting declaratory judgment to the Bank, finding that although Tontitown’s letter constituted the required written commitment, Tontitown had thereafter failed .to comply with section 14-40-2002 because it did not take any steps toward providing the services. The court specifically found that Tontitown’s request for a more definite statement from the Bank was not a substantial step required by the statute and did not shift the onus regarding services back to the landowner.
We first address Tontitown’s argument that the circuit court lacked subject-matter jurisdiction. Subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties, Perroni v. Sachar, 2017 Ark. 59, 513 S.W.3d 239. It is well settled that subject-matter jurisdiction is a court’s authority to hear and decide a particular type of case. Id. A court obtains subject-matter jurisdiction under the Arkansas Constitution or by means of constitutionally authorized statutes or court rules. Id. An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter under, any circumstances and is wholly incompetent to grant the relief sought. Id. Circuit courts have original jurisdiction of all justiciable matters not otherwise assigned pursuant to the constitution. Ark. Const, amend. 80, § 6(A).
We determine whether a court has subject-matter jurisdiction based on the pleadings. Perroni, supra. The first paragraph of the Bank’s pleading states that “[t]his Court has jurisdiction over this matter, and venue is properly in the Court pursuant to Ark. Code Ann. | „§ 14-40-2004(a).” The cited statute provides that “[t]he circuit courts of the state shall have exclusive jurisdiction to hear all matters related to this subchapter.” Ark. Code Ann. § 14-40-2004(a)(l). The Bank’s petition sought an order declaring that Tontitown had failed to comply with the requirements of that subchapter. Arkansas Code Annotated section 14-40-2004(b)(1)(A) allows for such a petition to be brought by either affected municipality or the landowner. Even prior to the enactment of section 14-40-2004, the supreme court held that judicial review of any action taken pursuant to Act 779 was available through a declaratory-judgment action brought by a municipality or a landowner. See City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001), Thus, we hold that the circuit court had subject-matter jurisdiction in this matter.
Tontitown next argues that the circuit court erred in granting declaratory judgment to the Bank. The standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660. 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 an error has been committed. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
Tontitown contends that it complied with its obligations under the statute because the services were already available to the property. We disagree. The evidence established [ 7that while water and sewer ser vices had been provided to the improved portion of the commercially zoned property, they had not been provided to the rest of the property. Beckford, Colvin, and Clark all testified that development plans would have to be submitted in order to extend water and sewer service to the rest of the property. Beckford said that “as a rule,” the city does not develop without specific plans, and Clark testified about the need for an engineer to determine the capabilities of the water and sewer systems to service developments on the residential portion of the property. Despite needing plans to move forward with making these services available, Clark testified that the city did not inform the Bank of what was needed or request that plans be filed. Rather, Tontitown took no steps after making its written commitment. Arkansas Code Annotated section 14-40-2002 requires that the city take substantial steps toward providing the requested services. We cannot say that the circuit court erred in finding that no such steps were taken.
Tontitown further claims that the Bank failed to comply with its reasonable request for a more definite statement. We agree with the circuit court, however, that Tontitown’s request did not shift the onus back to the Bank. The statute requires Tontitown to go beyond its commitment letter. The evidence fails to show that Ton-titown attempted to work with the Bank toward providing the services by inquiring about development plans or explaining what it needed from the Bank. Regardless of whether the other requested | ^services were provided or came within the statute’s provisions, we affirm due to the failure to take substantial steps toward providing water and sewer services to the majority of the property.
As a final point, Tontitown argues that the circuit court erred in failing to rule on its Rule 52(b) motion requesting rulings on specific issues. Arkansas Rule of Civil Procedure 52(b)(1) provides that upon motion of a party made not later than ten days after entry of judgment, the court may amend its findings of fact previously made or make additional findings and may amend the judgment accordingly. The circuit court’s order was entered on October 28, 2015, and Tontitown’s Rule 52(b) motion was filed on November 13, 2015. Excluding intermediate weekends and legal holidays as required by Arkansas Rule of Civil Procedure 6(a), Tontitown’s motion was filed on the eleventh day after the entry of judgment. Therefore, the motion was untimely, and the circuit court was not given an opportunity to rule on it. Middleton v. Lockhart, 2012 Ark. 131, 388 S.W.3d 451.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
. Act 779 of 1999 is codified at Arkansas ■Code Annotated sections 14-40-2001 to - 2002. In,2001, the Arkansas General Assembly amended section 14-40-2002 and added sections 14-40-2003 to-2005. See Act 1525 of 2001.
. Patrick testified that the improved portion consists of eight acres and that the remaining 30.5 acres is unimproved. | [
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WAYMOND M. BROWN, Judge
| Appellant Arkansas Department of Human Services (DHS) appeals the October 19, 2016 amended order by the Clark County Circuit Court finding it in contempt of court and ordering it to pay $1000 in attorney’s fees to appellee Jonathan Jones’s attorney. On appeal, DHS makes two arguments: (1) that there was no evidence that DHS was in contempt and (2) that ordering DHS to pay attorney’s fees violates the doctrine of sovereign immunity. Because there was neither a valid criminal-contempt finding nor a valid civil-contempt finding, we reverse the fee award and the trial court’s “contempt” designation.
The pertinent facts are as follows. There was an open dependency-neglect case concerning Jones. As part of the case plan, he was ordered to complete domestic-violence classes. In a review order filed on August 31, 2015, the court ordered DHS to “pay for the domestic violence classes for Jonathan Jones, Sr.” DHS had problems securing Domestic |2Violence Prevention, Inc., as an appropriate vendor because the tax ID number found on the W9 submitted by the company was incorrect. As a result, no payments were initially made on Jones’s behalf. Jones paid for the classes out of his own pocket and sought reimbursement from DHS. On January 20, 2016, Jones’s attorney sent an email to DHS, stating the following:
My client still has not been paid for his class expense. Additionally, the program is threatening not to allow him to continue classes if they are not paid.
I am respectively asking that my client receive his check no later than 5 pm this Friday, January 22, or I will be forced to file a motion for contempt against the department for failure to comply with orders of the court.
DHS responded on January 28, 2016 stating:
DCFS has informed me they have received Mr. Jones’ W9 and should have a vendor number within 48 hours. At that point a number will be issued, he will need to sign an invoice, a purchaser order will be keyed and he will then be reimbursed. I’m staying on them about this as I feel it should have already been done. I will keep you posted. Sorry for the delay.
Jones filed a motion for contempt on February 29, 2016, contending that DHS had failed to reimburse him after being court-ordered to do so. Jones asked that he be awarded a “reasonable attorney’s fee” for having to file the motion. DHS filed a response on March 21, 2016, asking that the motion be dismissed. In a review order filed on July 5, 2016, the court closed the dependency-neglect case against Jones; however, it left open the motion for contempt.
The court held a hearing on September 12, 2016, on Jones’s motion. By that time, Jones had received his reimbursement from DHS. At the hearing, DHS explained that this was an unusual circumstance because they had to pay for classes on Jones’s behalf, and reimburse Jones for payments he had already made. According to DHS, there were errors Rmade on both ends; however, it denied intentionally prolonging the process. At the conclusion of the hearing, the court stated the following:
All right. Thank you, Counsel, both of you did a good job. I certainly don’t find that Ms. Andres or Ms. Hrable or Ms. Rankin, anyone that’s working, just trying to do what they’re supposed to do. It seems like they were trying to do what they were supposed to do. But it’s kind of like I hate to use this, but I’m going to, as an example. I went fishing one time, and the fishing trip ended up catching an alligator. I didn’t want to be on that boat that caught the alligator. But as it was explained to me, if you’re in the boat, you get the alligator. Because of the other person, we had to catch the alligator. It ruined our fishing trip for a while. But eventually we caught fish. And that’s kind of what happened here. We’re on the boat of getting these children back to reunification with their parents, and we get an alligator. Nobody’s fault. But it’s not Mr. Jones’ fault, because he was doing everything he was supposed to do. It’s not our local office’s fault, because I believe they attempted in good faith to do what they were supposed to do. But it’s all within the systemic nature of where we are today. We’ve got this alligator that we can’t deal with special cases we can’t deal with little special problems and make them happen quickly. This should’ve happened quickly. It could’ve resulted and it may have resulted in a longer time that the children were not back with the parents. I don’t know. I don’t have an opinion about that. But it may not have either. But it could’ve ended in a worse situation. Again, no fault of the people working the case. I truly believe, having been up here on many occasions, that this office of the Department of Human Services is a very good office. I’m not just saying that because you’re in her[e]. I think you do a good job. ... But in this case, you know, we were just dealing with an alligator, and it just didn’t get dealt with. I mean, everything turned out okay. You know, when Mr. Huber filed the motion, that brought up the idea that we’ve got to do something. It wasn’t done. So the court will approve the attorney fees of a thousand dollars.
DHS objected arguing that it had not waived sovereign immunity and that domestic-violence education was not recognized as a family service. It told that trial court that it did not make the sovereign-immunity arguments initially due to “[t]rial strategy.” The court gave both sides time to brief the issues. The court filed an order on October 6, 2016, finding DHS in contempt and awarding Jones’s attorney $1000 in attorney’s fees. The court filed an amended order on October. 19, 2016, to “correct the date of the order for which this Court finds the Department in contempt for noncompliance and to clarify that this | ¿Court did rely upon the briefs filed by the parties regarding the- Department’s objection to being ordered to pay attorney’s fees.” DHS filed a timely notice of appeal that same day.
As its first point on appeal, DHS argues that the court erred in finding it in contempt. Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Appellate courts have often noted thht the line between civil and criminal contempt may blur’ at times. The difference between civil and criminal contempt is‘that criminal contempt punishes while civil contempt coerces.
Thus, in determining whether a particular action by a trial court constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. . Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. -This is the source of the familiar refrain that civil contemnors “carry the keys of their prison in |fitheir own pockets.” Criminal contempt, by contrast, carries an unconditional penalty,*and the contempt cannot be purged.
We must first decide whether the $1000 attorney’s fee was really a “punitive fine” for criminal contempt. A contempt fine for willful disobedience that is payable to the complainant is remedial, and therefore constitutes a fine for civil contempt, but if the fine is payable to the court, it is punitive and constitutes a fine for criminal contempt. Thus, it appears that the fee was based on civil contempt because it .was not payable to the court, but instead, to Jones’s attorney. Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. In ■ order to' establish civil contempt, there must be willful disobedience of - a valid order of a court. However, before one can be held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes.
There are three problems with this case. First, if DHS was found to be in civil contempt, the contempt should have been purged because 'DHS reimbursed Jones before the hearing on the motion. Second, if it was criminal contempt, DHS should have been required to pay a fíne to the court. However, neither is the case here and the record fails to demonstrate either form of contempt.
[fiThird, there is no factual basis for contempt. The order did not set out a time frame by which DHS was to pay for Jones’s classes, and the order' failed to mention reimbursement to Jones. The court made no finding that DHS willfully disobeyed the court order. In fact, it stated that DHS was “trying to do what [it] was supposed to do” and that DHS had acted in “good faith.” Therefore, a finding of contempt under these circumstances is clearly against the preponderance of the evidence.
The facts of this case are like those found in Applegate v. Applegate. In Ap-plegate, the parties were divorced by a decree entered in October 2006. The decree ordered Clifford to pay certain judgments and marital bill, but did not set a time frame in which the payments were to be satisfied. Kimberly filed a motion for contempt in December 2006, claiming that Clifford had willfully disobeyed the order of the court because the debts had not been satisfied. A hearing on. Kimberly’s motion took place in February 2007. Clifford presented evidence that he had satisfied many of the debts that he,was ordered to pay. The court found Clifford in contempt because he had not paid “certain bills” as ordered. Thus, Clifford was ordered to pay $500 in attorney’s fees. Clifford timely appealed the court’s order. On appeal, this court held that there was no valid civil or criminal contempt finding and that the record failed to demonstrate either. The court also noted that the decree failed to set out a time frame or definite terms by which Clifford was required to satisfy the debts. Additionally, the court noted that the trial court failed to make a finding that Clifford |7willfully disobeyed its order. The contempt finding was reversed as was the award of attorney’s fees.
Just as the Applegate court, we reverse the trial court’s order of contempt and the award of attorney’s fees associated with it.
Reversed.
Harrison and Vaught, JJ., agree.
. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
. Id.
. Id.
. Id.
. Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985).
. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).
. Id.
. Id.
. Id.
. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).
. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002).
. Id.
. 101 Ark. App. 289, 275 S.W.3d 682 (2008).
. Because we are reversing on the first point on appeal, we need not address DHS's argument concerning sovereign immunity. | [
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MIKE MURPHY, Judge
| Parrish Dare appeals the August 15, 2016 Saline County circuit court order calculating child support and finding a material change in circumstances sufficient to warrant a modification of visitation. We affirm in part and reverse and remand in part.
Scott Frost and Parrish Dare had a child together when they lived in Virginia. They were never married. When Dare wanted to move to Arkansas, the parties agreed to an order giving Dare primary physical custody and giving Frost “liberal visitation.” It set a visitation schedule alternating holidays and giving Frost two weeks each summer with the minor child. Child support was set at $400 a month. Despite the two weeks of visitation ordered each summer, Frost typically got closer to three or four weeks, by agreement with Dare.
Sometime early in 2015, Dare began asking for more support from Frost (who was actually paying $425 a month) but he declined to pay more. Around the same time, she Estopped permitting visitation other than what was specifically contemplated in the agreed order.
Frost registered the Virginia order in Saline County and moved to modify the order to include more visitation, alleging a material change in circumstances. Dare counterclaimed asking for more child support. A hearing was held on the visitation issue; Dare and Frost were the only witnesses. The court found a material change had occurred so as to warrant a modification in the visitation schedule. A separate hearing was held on the issue of child support to allow the parties to argue why Frost’s capital gains and stock portfolio should or should not be included in any child-support calculations. After consideration, the court concluded that Frost’s investment accounts were similar to retirement accounts or ownership of real property and that they may be included in the calculation of child support if Frost were to receive any disbursements, but not until then. The court found Frost’s average net biweekly in come to be $1174 and calculated the child-support obligation under Administrative Order No. 10.
Dare now appeals, arguing that the circuit court erred when it (1) found a material change in circumstances ■ sufficient to modify visitation and (2) declined to include Frost’s investment accounts in its calculation of his child-support obligation.
I. Material Change
Visitation is always- modifiable; however, courts require more rigid standards for modification than for initial determinations to promote stability and continuity for the | ^children and in order to discourage repeated litigation of the same issues. Meins v. Meins, 93 Ark. App. 292, 218 S.W.3d 366 (2005) (citing Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003)). The party seeking a change in the visitation schedule has the burden to demonstrate a material change in circumstances that warrants a change in visitation. Id. The best interest of the child is the main consideration, id., but whether a material change of circumstances has occurred is a threshold issue. Baker v. Murray, 2014 Ark. App. 243, at 7, 434 S.W.3d 409, 415. In child-custody matters, we perform a de novo review, but we will not reverse the trial court’s findings unless they are clearly erroneous. Hoover v. Hoover, 2016 Ark. App. 322, at 2-3, 498 S.W.3d 297, 299.
In its order, the circuit court found that Dare “had exposed the minor child to inappropriate circumstances and has been negative toward [Frost] sufficiently to cause strain between the minor child and [Frost].” Dare contends that no material change occurred to warrant' a modification of visitation.
We have held that an elevated degree of discord between parties can amount to a material change in circumstances. Id. The testimony from both parties established that they had previously been able to agree on extended summer visitations, but at trial, Dare had indicated that she did “not see a reason to do anything outside of the visitation guidelines if. he isn’t going to do anything outside of the support guidelines.” The evidence further established that Dare had shown the minor child the court pleadings from this case and some of the emails between her and Frost. On one occasion, she sent the minor child to Virginia for visitation with her father with an empty suitcase as an admitted act of “gamesmanship” designed to send a “message” to Frost. Given this evidence, it was appropriate to modify |4the visitation schedule to more closely reflect the actual conduct of the parties before the relationship devolved, and we affirm on this point.
II. Child Support
For her second point on appeal, Dare contends the circuit court erred when it opted to not consider the growth of Frost’s stock portfolio in its calculation of child support or imputing his income. We agree with Dare’s position as to the stock portfolio.
The appropriate method for determining the support due is by reference to the family support chart in Arkansas Supreme Court Administrative Order No. 10. Ark. Code Ann. § 9-12-312(a)(3)(A); Davis v. Bland, 367 Ark. 210, 238 S.W.3d 924 (2006). It is a rebuttable presumption that the amount of child support calculated pursuant to the chart is the appropriate amount. Id. If the court deviates from the chart amount, it must include specific written findings stating why, after consideration of all relevant factors including the best interest of the child, the chart amount is unjust or inappropriate. Ark. Sup. Ct. Admin. Order No. 10 § (I). The amount of child support due is a factual question. “As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion.” Hall v. Hall, 2013 Ark. 330, at 4, 429 S.W.3d 219, 222, reh’g denied (Oct. 31, 2013).
At trial, the evidence established that Frost had about $40,000 invested in a stock portfolio at Wells Fargo. His tax returns indicated a net profit of $5470 from that portfolio in 2014, and $1454 in 2015. In its order, the court reasoned that it shouldn’t have to “engage in the cumbersome annual review in the fluctuations in value of certain types of property” and that Frost’s investment acc'ount was similar to a retirement account 6r ownership of real [¿property, and the growth from that account should be used in the calculation of child support only when the “growth is actually ‘realized’ by the owner.”
In White v. White, citing the federal tax code, our supreme court held that a gain from the sale or exchange of property, when realized, constitutes “profit” and is regarded as “income” that is taxable during such period when it is realized. 95 Ark. App. 274, 282-83, 236 S.W.3d 540, 546-47 (2006). The test for realization is straightforward: to realize a gain or loss in the value of property, the taxpayer must engage in a “sale or other disposition of [the] property.” Id. .(citing 26 U.S.C. 1001(a)). Frost’s tax returns indicate he bought and sold stocks in 2014 and 2015 and realized gains from those sales. Choosing to reinvest the .profits into other stock purchases does not preclude one from having to pay taxes on it and should not preclude it from being considered when calculating child support. We therefore remand with instructions to consider the realized gains as income, but leave it to the circuit court’s discretion on how to best do so.
Dare next argues that the circuit court erred in not imputing Frost’s income commensurate with his lifestyle. Administrative Order No. 10 provides the following guidance on imputing income:
Imputed Income. If a payor is unemployed' or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a pay- or ordered to pay child support.
Here, the testimony established that Frost is a behavioral-specialist counselor for at-risk middle schoolers and makes ■ $1071 semimonthly. He testified that his wife’s income fluctuates, but her work and savings do contribute toward paying their monthly expenses. | (¡Frost has some money in savings and, as previously discussed, a modest stock portfolio. Dare does not direct our attention to any evidence that indicates Frost is “unemployed or working below full earning capacity,” and we find no error in the circuit court’s decision to not impute Frost’s income.
Affirmed in part; reversed and remanded in part.
Abramson and Hixson, JJ., agree.
; On review, we could not discern how the court arrived at this figure, but because we are remanding the case to recalculate the child-support obligation, we mention it here only in passing. | [
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KAREN R. BAKER, Associate Justice
[]On June 7, 2013, appellant, Kenneth Hinton, was charged with one count of battery in the first degree and one count of battery in the second degree. The charges stem from a disturbance at the Varner Unit of the Arkansas Department of Correction (hereinafter “ADC”) on October 28, 2012, in which Hinton and other inmates were involved. Hinton was charged in the disturbance for injuring Warden Joe Page and correctional officer Stephen Simmons. On December 14, 2014, the case was tried and resulted in a mistrial. On April 25, 2016, the matter proceeded to trial for a second time, and a Lincoln County jury convicted Hinton of one count of first-degree battery and one count of second-degree battery and sentenced him to thirty years’ imprisonment and fifteen years’ imprisonment respectively.
At trial, the testimony demonstrated that ADC Warden Joe Page and ADC Correctional Officer Stephen Simmons were physically injured. Simmons testified that on IgOctober 28, 2012, he was working at the Varner Unit as a shift lieutenant. On the day of the incident, a riot began as inmates started to leave the chow hall and the inmates started to fight each other and correctional officers. Simmons further testified that during the riot, Hinton struck him in the back of the head. Kenneth Ridgell, Field Rider at the ADC, testified that on the day of the incident, he witnessed Hinton “blind side” Page and hit Page with a closed fist; Page fell forward unconscious.
The case first proceeded to trial and ended in a mistrial on December 15, 2014. On June 4, 2015, the circuit court entered a scheduling order setting a new trial date for October 26-29, 2015. On that same date, a second scheduling order was entered setting the new trial date for November 17-19, 2015. On October 9, 2015, Hinton filed a motion to continue the October 26, 2015 trial date asserting that he had not received notice of the trial date and was not available for trial and was aware only of the November 2015 trial date. On November 19, 2015, the circuit court entered a revised scheduling order, granting Hinton’s motion for continuance and resetting the trial for April 25-27, 2016.
On April 20, 2016, Hinton filed a motion to dismiss alleging a speedy-trial violation. On April 21, 2016, the circuit court denied the motion to dismiss. On April 25, 2016, the matter proceeded to trial for a second time, and Hinton was convicted and sentenced as described above. On May 16, 2016, the circuit court entered a judgment and commitment order.
On May 26, 2016, Hinton timely appealed to the court of appeals. On February 8, 2017, we accepted certification of this case. Hinton presents two issues on appeal: (1) the |scircuit court erred in denying Hinton’s motion to dismiss based on an alleged speedy-trial violation and (2) the circuit court erred in denying Hinton’s motion to appear in civilian clothing.
I. Points on Appeal
A. Speedy Trial
For his first point on appeal, Hinton asserts that the circuit court erred when it denied his motion to dismiss based on an alleged speedy-trial violation. Because this court conducts a de novo review on appeal to determine whether specific periods of time are excludable under the speedy-trial rules, we discuss the relevant time periods below. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).
Pursuant to Arkansas Rule of Criminal Procedure 28.1(b) (2016), any defendant charged with an offense and incarcerated in prison in this state pursuant to conviction of another offense must be brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. Ark. R. Crim. P. 28.2(c) requires that if a defendant is retried after a mistrial, the time for trial shall commence to run from the date of mistrial. Next, in calculating the speedy-trial period, necessary periods of delay are excluded as authorized in Ark. R. Crim. P. 28.3. Under Rule 28.3(c), the period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket gentry granting the continuance. Also, the period of time when a defendant’s motion for continuance is pending is a period properly excluded under Ark. R,Crim. P. 28.3(a). See Dodson v. State, 358 Ark. 372, 382, 191 S.W.3d 511, 517 (2004). Once it has been determined that the trial took place outside the speedy-trial period of twelve months, the State bears the burden of proving that the delay was the result of the defendant’s conduct or was otherwise legally justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
We turn to review the excludable time period in Hinton’s case. At issue is the circuit court’s April 21, 2015 denial of Hinton’s motion to dismiss:
The case was first tried on December 15, 2014.... The defendant moved for a mistrial and it was granted.
The case was reset for jury trial on October 26-29, 2015. The 315 days from December 15, 2014, until October 26, 2015, is included in the calculation for speedy trial.
On October 9, 2015, the defendant filed a motion to continue the October jury trial.... The scheduling order resetting the trial for April 25-27, 2016, excluded from speedy trial the time between trials.
Although more than 365 days have elapsed since December 15, 2014, excluded periods decrease the number of days to 315.
Hinton contends the circuit court’s ruling is erroneous. The crux of Hinton’s speedy-trial argument is that when the circuit court set the October and the November 2015 trial dates, Hinton was to be tried separately on the two different charges. Further, Hinton argues, because the circuit court did not continue the separate November trial date or enter Dan order regarding the November trial date, but only addressed the October 2015 trial, the State failed to bring Hinton to trial within the required 12-month time period and violated his right to speedy trial.
We disagree with Hinton. Applying our rules discussed above, the time period began to run from the date of the mistrial, December 15, 2014, until Hinton filed his motion for continuance on October 9, 2015, and tolled the time period. This time period totals 299 days. Next, on November 19, 2015, the circuit court entered an order granting the continuance and setting the trial date for April 25, 2016. Thus, the time period was tolled further from the October 9, 2015 motion for continuance until the November 19, 2015 order, when the circuit court granted the continuance. Also, the time period continued to be tolled from the circuit court’s order granting the continuance on November 19, 2015 until the trial date on April 25, 2016. In sum, from the date of the mistrial, December 15, 2014, until the date of Hinton’s trial, April 25, 2016, 497 days had accrued. However, pursuant to our rules discussed above, the time period from October 9, 2015, until April 25, 2016 was tolled because of Hinton’s motion for continuance. Accordingly, 199 days are excluded from the twelvemonth requirement and there were 298 days from the date of mistrial until Hinton’s trial date.
Finally, we must note that we do not find merit in Hinton’s argument regarding the November 2015 scheduling order. The record demonstrates that the State charged Hinton with one criminal information and the charges were not severed. The two scheduling orders have the same case number and identical language, with the exception of the trial dates and | ^excluded periods. Further, Hinton’s motion for continuance stated:
On June 4, 2015, the Court entered a scheduling order resetting this case for trial on November 16, 2015. This notice was received by counsel for Hinton, and the trial date was placed on undersigned counsel’s calendar.
On October 5, 2015, counsel spoke to Wayne Juneau, attorney for the State, regarding the trial setting. Mr. Juneau was inquiring about the possibility of combining the November 16 trial date with the trial set on October 26, 2015. Counsel for Hinton was unaware of the October 26th trial date.
A review of the docket for this case shows that two scheduling orders were entered almost simultaneously on June 4, 2015. Both scheduling orders reference the same case number. There is no indication that there has been a severance of the charges against Mr. Hinton.
Trial preparation is not complete ... [and] [counsel] has one federal criminal jury trial which conflicts with the October 26th date. ... Counsel does not believe it will be possible to adequately prepare for the trial before October 26, 2015.
Here, Hinton’s argument fails for three reasons. First, the charges were never severed. Second, Hinton expressly acknowledged that the charges were not severed and his counsel was unavailable for the trial, not multiple trials. Third, the circuit court’s order granting Hinton’s motion for continuance was entered on November 19, 2015, after the November 16, 2015 trial date. If the trial had been conducted on the November 16 trial date, the circuit court would not have entered the November 19 continuance order. Accordingly, the November 2015 trial date was encompassed in the November 2015 continuance order resetting the trial for April 2016. Therefore, based on our discussion above and our standard of review, we do not find error and affirm the circuit court.
|7B. Prison Garb
For his second point on appeal, Hinton asserts that the circuit court erred in denying Hinton’s motion to appear in civilian clothing. On the morning of trial, relying on Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002) and Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002), Hinton filed a motion to appear in civilian clothes, which was denied by the circuit court. During the pretrial hearing, Hinton renewed his motion to wear civilian clothing. The State objected, contending that Hinton was incarcerated for serious offenses, that the trial also concerned serious offenses, and that no prejudice would result from Hinton wearing his white prison uniform. The circuit court denied Hinton’s motion.
In reviewing a motion to wear civilian clothing, our standard of review is whether the circuit court abused its discretion in denying the motion. Box, supra.
On appeal, Hinton contends that this court’s holding in “Box is clear and unequivocal ... The rule is absent a waiver, a criminal defendant may not be tried in prison garb.” Hinton further contends that he did not waive his rights, and he was prejudiced by the circuit court’s denial of his request. We disagree based on the discussion that follows.
With regard to wearing prison garb at trial, Miller v. State, 249 Ark. 3, 5, 457 S.W.2d 848, 849 (1970), is our seminal case holding that absent a waiver, a defendant may not be forced to wear prison garb. In Miller, pending trial, Miller was held in the penitentiary, and, on the day of trial, Miller was transferred to the Pulaski County jail. Prior to the commencement of the trial, Miller requested to wear civilian clothing, and the circuit court denied his motion. On appeal, we reversed the circuit court because Miller had not waived [shis right to wear civilian clothing: “That is because of the rule, supported by a strong majority, that absent a waiver accused should not be forced to trial in prison garb.” Id., 457 S.W.2d at 849.
Almost three decades later in Tucker v. State, 336 Ark. 244, 247-48, 983 S.W.2d 956, 958 (1999), we were presented with a situation similar to Hinton’s, where an incarcerated prisoner was at trial for separate offenses than his incarceration and requested to wear civilian clothes. Tucker was charged with capital murder in the death of a fellow inmate that occurred while incarcerated at that ADC. On appeal, Tucker asserted the circuit court erred in denying his motion to wear civilian clothing at trial. We affirmed the circuit court and explained:
We have ... recognized that when the defendant is an inmate at the state prison at the time of the trial, and these facts will be revealed during the course of the trial, any prejudice that may have resulted from having the defendant in restraints would be rendered harmless because the restraints add nothing to the trial that was not already apparent from the nature of the case. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997); Williams [v. State, 304 Ark. 218, 800 S.W.2d 713 (1990) ].
The United States Supreme Court has noted that when the accused is being tried for an offense committed while in confinement, no prejudice can result from the defendant wearing prison garb because “no prejudice can result from seeing that which is already known.” Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)(dis-cussing a Fifth Circuit case, Stahl v. Henderson, 472 F.2d 556 (5th Cir. 1973), where a defendant was tried in prison clothes for murdering a fellow inmate and certiorari was denied).
Subsequent to Tucker, three years later in Williams v. State, 347 Ark. 728, 736, 67 S.W.3d 548, 552 (2002), we again affirmed a circuit court’s denial of a defendant’s motion to wear civilian clothing when the offenses that Williams was being tried for occurred during |3his escape from the ADC. Williams was charged with capital felony murder and theft of property, which occurred during his escape from the Cum-mins Unit of the ADC. On appeal, Williams contended that the circuit court erred in requiring him to wear prison garb at trial. Citing to Miller, we affirmed the circuit court and explained:
In this context, the accused is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970) (citing 21 Am. Jur. 2d Criminal Law § 239).
However, in this case Williams committed the acts during the course of an escape from the custody of the Arkansas Department of Correction. The acts included escape, capital murder, aggravated robbery, and theft. The United States Supreme Court in Estelle noted that courts have refused to find error in requiring the defendant to wear prison garb in such situations. It is obvious that during the course of the trial, Williams’s incarceration would be revealed to the jury. It is equally obvious that during trial the jury would be told these crimes were committed after he escaped and while he was trying to avoid apprehension.
As the United States Supreme Court noted in this regard, no prejudice can result from seeing that which is already known. Estelle. As one who was prosecuted for crimes committed in the course of his escape and flight from prison, that Williams wore prison garb was something that was known, or by necessity would become known during trial and could pose no prejudice. The trial court did not commit error in requiring Williams to wear his prison garb during the trial and the related proceedings.
Williams, 347 Ark. at 746-47, 67 S.W.3d at 558-59.
Two months after Williams, we handed down our opinion in Box. In Box, Box was charged with robbery of a liquor store. At the time of his trial, Box was incarcerated in the Arkansas Department of Correction on other convictions. Box was not on trial for offenses |10that occurred within the ADC or while he was incarcerated. The issue was whether Box waived his right to appear before the jury dressed in civilian clothing. We held that under the specific facts of his case, Box had not waived his right, and we reversed the matter for a new trial. In so holding, we explained:
There cannot be any doubt that appellant had a right to appear in civilian clothing. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). In Miller, we adopted the rule then held by the majority of States that “absent a waiver accused should not be forced to trial in prison garb.” Miller, 249 Ark. at 5, 457 S.W.2d 848. This was and remains consistent with Article 2, Section 8, of the Arkansas Constitution. Six years later, the United States Supreme Court noted this court’s opinion in Miller with approval and adopted a somewhat similar rule in Estelle v. Williams, 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126] (1976). The holding of the U.S. Supreme Court in Estelle was that under the Fourteenth Amendment, a defendant’s constitutional rights were violated when he was compelled to wear identifiable prison clothing. The U.S. Supreme Court’s decision in Estelle was first noted by this court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev’d on other grounds, Holloway v. Arkansas, 435 U.S. 475 [98 S.Ct. 1173, 55 L.Ed.2d 426] (1978). We have never altered our original holding in Miller.
Box, 348 Ark. at 123, 71 S.W.3d at 556-57.
At issue here is whether Hinton received a fair trial. We answer in the affirmative. Hinton was charged with crimes that occurred while incarcerated—battery in the first degree and second degree of ADC officers during a riot that occurred while incarcerated for other offenses at the ADC. Although Hinton asserts that Box is on point, and absent a waiver he may not be tried in prison garb, he is mistaken. Box addressed the waiver of Box’s rights to appear in civilian clothing for a trial on charges of offenses that he did not commit while incarcerated. We find Tucker and Williams are on point and direct us to affirm the circuit court. Like Tucker and Williams, Hinton committed acts while in the custody of the ADC. In Williams, citing the United States Supreme Court’s opinion in Estelle, we noted that the InSupreme Court recognized that courts have refused to find error in requiring the defendant to wear prison garb in such situations. As in Williams, it is obvious here that during the course of the trial, Hinton’s incarceration would be revealed to the jury. It is equally obvious that during trial the jury would be told these crimes were committed while he was incarcerated at the ADC because the underlying facts stem from a riot at the prison, and the victims were ADC officers. In Williams, we held that any prejudice would be rendered harmless. As the United States Supreme Court noted in this regard, no prejudice can result from seeing that which is already known. See Estelle. Because Hinton was prosecuted for crimes committed during his incarceration, that Hinton wore prison garb was something that was known, or by necessity would become known during trial, and could pose no prejudice. Accordingly, the circuit court did not commit error in requiring Hinton to wear his prison garb during the trial.
Affirmed.
Hart, J., concurring in part and dissenting in part. | [
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RAYMOND R. ABRAMSON, Judge
11 Marvin Daily, Tamara Daily, Daily’s Fleeting & Harbor Service, Inc. (“Fleeting & Harbor”), and T&M Grocery Services, Inc. (“T&M”), appeal the Sebastian County Circuit Court order dismissing their complaint against John Langham and Old Fort Properties, LLC (“Old Fort”). On appeal, they argue that the circuit court erred by finding their claim was barred by res judi-cata. We affirm.
Marvin and Tamara are husband and wife. They own Fleeting & Harbor and T&M. In July 2012, Marvin, Tamara, Fleeting & Harbor, and T&M' entered into an agreement to sell Marvin Properties, LLC (“Marvin Properties”), and other miscellaneous items to John | ^Langham. Marvin Properties’ assets ifieluded an 18.9-acre tract of land on the'Arkansas River (the.“riverfront property”). The.July 2012 agreement collectively refers to Marvin, Tamara, Fleeting & Harbor, and T&M as “Daily.”
The agreement notes that Elizabeth Perry, Marvin’s former business partner and girlfriend, had an interest in Marvin Properties and that Marvin and Perry had been litigating the ownership of the company in the Sebastian County Circuit Court (the “Perry litigation”). Specifically, the parties in the Perry litigation included Perry as the plaintiff and Marvin, Marvin Properties, and Fleeting & Harbor as the defendants. Tamara and T&M were not parties to the litigation. Paragraphs five, six, and eight of the July 2012 agreement provide in part:
5. The pdrchase price will be $800,000. It will be paid by assumption of an indebtedness in favor of David Craven, of $165,418.34, and seller financing for the remainder as defined below, with Langham agreeing that once he has sold a boat currently for sale and the Perry litigation is settled,- he will pay $50,000 on the Seller financed obligation.
6. Beginning with the June 2012 payment, Langham will pay the David Craven monthly payment, and all payments made by him will be credited against the purchase price and set off against the amount that will be financed by Seller financing.
8. The parties will close after the Perry Litigation is settled, or Perry agrees to the sale, and the title insurance commitment is issued confirming that there are no title defects that will interfere with Langham’s' intended use of the Property or with marketability of title.
|sOn January. 13, 2013, the Sebastian County Circuit Court entered an order in the" Perry litigation. The court noted that the sole issue to be resolved was the division of Marvin and Perry’s interests in Marvin Properties. The court ordered that the net proceeds from the July 2012 agreement to sell Marvin Properties shall be' divided equally between Perry and Marvin. Following the entry of the court’s order, in February 2014, Langham assigned his interest in the July 2012 agreement to his company, Old Fort.
■ On February 2, 2015, Old Fort filed a petition for' intervention and third-party demand in the Perry litigation against Marvin Properties, Marvin, and Perry and alleged claims for specific performance, breach of contract, and unjust enrichment. Specifically, it alleged that Langham had made the monthly payments to Craven, Marvin Properties’ creditor, pursuant to the July 2012 agreement but that Perry had refused to accept payments for the purchase ■ price of the riverfront property and had refused to transfer it.
On October 19, 2015, Marvin Properties, Marvin, Perry, Fleeting & Harbor, and Old Fort filed a joint motion to dismiss. They-alleged that “all claims and controversies existing between them in the above captioned matters have been resolved” and asked. the court to “dismiss all claims ... with prejudice.” On that same day,. the circuit court entered an order dismissing Perry’s complaint against Marvin, Marvin Properties, and Fleeting & Harbor with prejudice. The court also dismissed Old Fort’s third-party complaint against Perry, Marvin, and Marvin Properties with prejudice.
On March 22, 2016, Marvin, Tamara, Fleeting & Harbor, and T&M filed the instant action' against Langham and Old Fort. They alleged that Langham and Old Fort had failed |4to pay the' remaining balance on the July 2012 agreement, and they asserted a claim for breach of contract.
In response, Langham and Qld Fort filed a joint motion to dismiss the complaint .pursuant to Arkansas Rule of Civil Procedure 12(b)(6), asserting that the suit was barred by res judicata as result of the October 19, 2015 order of dismissal with prejudice in the Perry litigation. The circuit court agreed, and on May 26, 2016, it dismissed the complaint. Marvin, Tamara, Fleeting & Harbor, and T&M timely appealed the order to this court. On appeal, they argue that the circuit court erred in finding their suit was barred by res judica-ta.
We generally review á circuit court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark. Inc., 2010 Ark. App. 279, 373 S.W.3d 907 (citing Statewide Outdoor Advert., LLC v. Town of Avoca, 104 Ark. App. 10, 289 S.W.3d 111 (2008)). On those occasions where the circuit court is presented with documents outside the pleadings, we treat the case as an appeal from a summary judgment, see Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80, and view the evidence in the light most favorable to the party opposing the motion. Winrock Grass Farm, 2010 Ark. App. 279, 373 S.W.3d 907 (citing Watkins v. S. Farm Bureau Cas. Ins. Co., 2009 Ark. App. 693, 370 S.W.3d 848). However, when the issues on appeal do not involve factual questions but rather the application of a legal doctrine such as res judicata, we simply determine whether the appellees were entitled to judgment as a matter of law. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269; Winrock Grass Farm, 2010 Ark. App. 279, 373 S.W.3d 907.
Res judicata means that “a thing or matter has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Baptist Health, 2010 Ark. 358, at 7, 373 S.W.3d at 278 (citing Beebe v. Fountain Lake Sch. Dist., 365 Ark. 536, 231 S.W.3d 628 (2006)). Res judicata consists of two facets, one being issue preclusion and the other claim preclusion. Id. The claim-preclusion aspect of res judicata bars relit-igation of a subsequent suit when (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.
In this case, appellants argue that res judicata does not apply because Lang-ham and Old Port failed to establish requirements four, and five of claim preclusion. Specifically, as to requirement four, appellants argue that they could not assert the instant claim in the previous lawsuit because paragraphs five and eight of the July 2012 agreement state that closing would occur after, the Perry litigation had been resolved. They point- out that the Perry litigation was not resolved until the circuit court entered the October 19, 2015 order of dismissal. Thus, appellants claim they could not bring the current lawsuit until after the court had entered the dismissal order.
We disagree and hold that the current litigation and the third-party complaint in the Perry litigation involve the same claim. Res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. | ¡Baptist Health, 2010 Ark. 358, 373 S.W.3d 269. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks, additional remedies. Id.
In this case, both the current litigation and the third-party complaint assert claims for breach of. the July 2012 agreement. Specifically, in the third-party-complaint, Old Fort alleged that Perry had refused to accept final payments and refused-to transfer the riverfront property pursuant to the contract, and it asserted a claim for breach of contract. In the current litigation, appellants allege that Old Port and Langham refused to pay the remaining balance on the contract, and they -assert a breach-of-contract claim. Thus; both the third-party complaint and the' current litigation are based on the ¡same subject matter. Even though the July 2012 agreement provides .that closing would occur after the Perry litigation had concluded, res judicata applies to new legal issues when the case is based on the same subject matter as the previous lawsuit. See id. Further, the parties. stated in their joint motion to dismiss that “all claims and controversies existing between them [had] been resolved,” and they approved the court’s October 19, 2015 order of dismissal with prejudice. Accordingly, we hold that the suits involve the same claim.
As to requirement five, appellants argue that the res judicata bar does not apply to T&M and Tamara because they were not parties to the Perry litigation. They point out that only Marvin and Fleeting & Harbor were parties in the Perry ligation. We again disagree with appellants.
Privity of parties within the meaning of res judicata means a person so identified in interest with another that he represents the same legal right. Winrock Grass Farm, 2010 Ark. App. 279, 373 S.W.3d 907. The parties need not be precisely the same for a judgment in one action to bar another, as long as there is a substantial identity and the same claim is at stake. Van Curen v. Ark Prof'l Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). Our supreme court has never required strict privity in the application of res judicata but instead has supported the idea that there must be a substantial identity of parties to apply the doctrine. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). We have explained:
It has been suggested that privity is merely a word used to say that the relationship between one who is a party and another person is close enough that a judgment that binds the one who is a party should also bind the other person ... It has also been held that the identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form.
Ark Dep’t of Human Servs. v. Dearman, 40 Ark. App. 63, 68, 842 S.W.2d 449, 452 (1992).
For example, our supreme court has held that a principal-agent relationship is sufficient to satisfy the privity requirement for purposes of res judicata. Jayel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006). Further, our supreme court has found privity for purposes of res judicata between a husband and wife in a land dispute, Collum v. Hervey, 176 Ark. 714, 3 S.W.2d 993 (1928) (holding that a title quieted against a husband was conclusive against the wife who had not been a party in the original lawsuit), between a brother and a sister in a claim alleging civil conspiracy and tortious interference, Francis, 343 Ark. 104, 31 S.W.3d 841 (holding that a son’s settlement with father involving a guardianship proceeding was res judicata as to father’s subsequent suit with daughter), and between a testator and his remote heirs, Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993) (holding that a settlement by a testator is binding on the remote heirs). On the other hand, our supreme court has held that the fact that an individual owns stock in a corporation does not alone 18create privity between the individual and the corporation. Walthour v. Finley, 237 Ark. 106, 372 S.W.2d 390 (1963).
In this case, Tamara and T&M were in privity with Marvin because their interests were so identified in interest with Marvin’s that he represented the same legal right. Tamara and Marvin are husband and wife, and they own T&M together. Further, T&M and Tamara were parties to the July 2012 agreement, and the agreement collectively referred to Marvin, Tamara, T&M, and Fleeting & Harbor as “Daily.” Given these circumstances, we hold that Tamara and T&M were in privity with Marvin. Accordingly, we affirm the circuit court’s dismissal of appellant’s complaint as barred by res judicata.
Affirmed.
Gladwin and Glover, JJ., agree.
. The miscellaneous items included a crane, two trailers, tools, three portable outbuild-tags, a mobile home, a tugboat, and a United States Army Corps of Engineers permit.
. From this point on, we refer to Marvin, Tamara, Fleeting & Harbor, and T&M jointly as the "appellants.” | [
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BART F. VIRDEN, Judge
| tAppellant James Hubbard was working for appellee Riceland Foods on March 16, 2004, when he sustained compensable injuries to his right shoulder and neck. In September 2015, an administrative law judge (ALJ) found that Hubbard was permanently and totally disabled. The Arkansas Workers’ Compensation Commission (Commission) reversed that decision and determined that Hubbard had sustained 50 percent wage-loss disability. Hubbard argues on appeal that the Commission’s decision is not supported by substantial evidence and that the Commission erred as a matter of law by requiring him to have a physician’s opinion that he was permanently and totally disabled in order to sustain his burden of proof. We affirm.
|¾1. Hearing
A. Hubbard’s Testimony
At a hearing in July 2015, Hubbard testified that he was seventy-three years old, that he had finished the sixth grade in school and did not read or write well, and that he had worked “odd jobs” after leaving school. He stated that he had picked and chopped cotton, cut wood, dug holes for septic tanks, and mowed lawns. He later threw logs at a sawmill and stacked lumber. He went to work for Riceland in the early 1960s. He was laid off from Rice-land for a couple of years during which time he worked at a paper mill. Hubbard then returned' to Riceland. He testified that he had worked there for nearly forty years. He said that he began working in the packaging department; he was later moved to shipping and receiving; and then he was moved to the scale floor where he had started moving pipes. He said that his job was to physically move big round pipes that “looked like [they] weighed about 3,000 or 4,000 pounds.” He said that the rice would go through the pipes and that he directed it for loading into a truck, a railcar, or a bin. Hubbard said he worked sixty-five to eighty hours per week. He said that in 1997 he injured his left foot and ankle when he had strained to pull a pipe, that he still has problems with the foot, and that he wears special boots to protect his ankle.
According to Hubbard, on March 16, 2004, he overstrained while pulling a pipe and felt “a shocking pain” down his right arm from his neck and shoulder. He reported the injury and worked with assistance until June 29, 2004, when he turned sixty-two years old, retired, and began drawing Social Security benefits and pension payments. Hubbard said Rthat he would still be working at Riceland today but could no longer work there because of his injuries. He said, “I don’t know of any job I’ve held in my lifetime that I would be physically able to do right now.”
Hubbard testified that he had surgeries on his neck, elbow, and wrist and fingers. He agreed that at a deposition in March 2008 he testified that the surgeries had improved the use of his hand and that his neck had gotten better. He agreed that, according to his deposition, he had said that he had no problems other than his neck was “a little stiff.” Hubbard testified that he had a ten-pound lifting restriction after his neck surgery.
Hubbard said that he had had diabetes for thirty years, high blood pressure, and some cholesterol issues. He also had cataract surgery not long ago. Hubbard was wearing a neck brace at the hearing and stated that he wore it off and on during the day and that he had to be careful how he turned his neck. He stated that he could drive a vehicle but that he had to turn his entire upper body to look out the window. He displayed his right hand—a fist that he had difficulty opening completely. Hubbard stated that he had received therapy for his hand and had chosen on his own to wear a hand brace. He denied having had problems with his right hand since he was a young boy and did not know why his therapist would have written that in his records. He also denied having had any other injuries since 2004 but was confronted with records from Jefferson Comprehensive Care System, Inc., showing that he had been involved in a motor-vehicle accident in April 2009, that he had complained of neck and back pain, and that he had follow-up visits from April through August “just [to] mak[e] sure there wasn’t nothing wrong with [him].”
|4In describing an average day, Hubbard said that he got up early to take his medications, that he watched television in the morning, and that friends sometimes came by to check on him, feed his dogs, or help him with his lawn. He said that his niece lives with him and that she does the cooking and cleaning. Hubbard agreed that he did not wear a neck brace to his deposition in March 2008 and that he had testified that he was mowing his own yard, cooking and cleaning, driving, and living by himself.
Hubbard testified that he had not looked for work in any capacity since he left Riceland and had not returned to Riceland to see whether the company had work for him.
B. Medical Records
On March 16, 2004, Hubbard sought treatment at Stuttgart Regional Clinic and was assessed with right-shoulder strain. He was released the same day to restricted-duty work. Hubbard began experiencing problems with his right arm and hand in late March 2004 and followed up with several doctors at the clinic. At a follow-up visit in April 2004, Hubbard was restricted to left-hand work only. In May 2004, Hubbard was pulling a lever to release rice with his left hand and pulled his left shoulder, An EMG/nerve-conduction study in May 2004 was abnormal, and it was recommended that he have a full neurological consultation and testing.
A nerve-conduction study in April 2007 was also abnormal. It was noted that Hubbard complained of right-arm weakness that had progressed to his left arm. Hubbard saw Dr. Reza Shahim at Neurological Surgery Associates in August 2007. On August 31, 2007, Dr. Shahim performed “1. Cervical laminectomy extending from C4 through C7 with decompression C3, 4, 5, 6, and 7. 2. Bilateral foraminotomies. 3. Lateral mass plating |Rat C3-4 with posterior inner facet fusion at C3-4.” In January 2008, Dr. Shahim reported that Hubbard was getting better and released him.
In November 2008, Dr. Shahim reported that “[Hubbard] could undergo decompression of a median nerve and ulnar nerve, but I’m not sure if that is going to help him with his hand function at this point. ... His neck and shoulder symptoms are stable.” In January 2009, Dr. David Rhodes performed “1. Right volar wrist flexor tendon tenosynovectomy with median nerve decompression of the wrist. 2. Right ulnar nerve decompression at the elbow. 3. Adjacent tissue transfer of the flexor carpi ulnaris to fill a soft tissue defect measuring 4 cm2.”
In September 2009, Dr. Shahim reported that Hubbard complained of right-hand weakness, had right-hand claw deformity, and continued to have neck and shoulder symptoms. In January 2010, Hubbard saw Dr. Rhodes, who noted that “he has improvement, however, the right long finger is continuing to be flexed.” In February 2010, Hubbard underwent surgery—a right-hand flexure contracture release. In June 2010, Dr. Rhodes noted that Hubbard had said that he was “much improved from his surgeries,” and Dr. Rhodes released him. The parties agreed that Hubbard reached maximum medical improvement (MMI) on June 9, 2010.
In February 2012, Hubbard saw Dr. Shahim, who reported that
[Hubbard] is doing fairly well. He does complain of some aches and pains in the posterior cervical spine. He says his symptoms have been very stable. He denies any new pain or any change in any pain pattern. He has had right arm weakness and right hand deformity, which has also been stable.
Dr. Rhodes saw Hubbard in March 2012 and noted that Hubbard had reported improvement after his hand surgery. Dr. Shahim reported in October 2012 that
IfiThe patient has neck and shoulder pain. He has received prior cervical decompression. He has had significant improvement in his symptoms. He says his neck and shoulder symptoms are not very severe at this point. He has right hand deformity that is stable. He says after ulnar decompression and release in his hand, that his hand has improved. He says his neck and shoulder symptoms are mild and the headaches are very mild and not very severe at this point.
On June 4, 2014, Dr. Shahim assigned a 13 percent permanent impairment to the body as a whole.
II. Permanent & Total Disability and Wage Loss
“Permanent total disability” means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11—9—519(e)(1) (Supp. 2015). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519(e)(2).
When a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant totally and permanently disabled based on wage-loss factors. Milton v. K-Tops Plastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based on a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Id. In considering factors that may affect an employee’s future earning capacity, the court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Id.
Will. Commission’s Decision
While the ALJ determined that Hubbard had sustained his burden of proving that he was permanently and totally disabled, the Commission reversed, finding that
the claimant did not prove by a preponderance of the evidence that he is permanently and totally disabled. No treating physician has opined that the claimant is “unable to earn any meaningful wage in the same or other employment,” which element the claimant is required to prove in accordance with Ark. Code Ann. § ll-9-519(e) (Repl. 2012). Both treating surgeons have opined that the surgeries the claimant has undergone have decreased the claimant’s symptoms and increased his physical capabilities. Nevertheless, the claimant has not sought any appropriate gainful employment since retiring from Riceland in 2004. The claimant’s demonstrated lack of interest in returning to work is an impediment to the Commission’s full assessment of the claimant’s alleged permanent total disability. When considering the claimant’s relatively advanced age, lack of education, history of unskilled manual labor, permanent physical restrictions, and lack of interest in returning to gainful employment, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 50%.
(Internal citations omitted.)
IV. Standard of Review
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. White v. Ark. State Highway & Transp. Dep’t, 2009 Ark. App. 768. Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission; the Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Voan v. City of Texarkana, 2015 Ark. App. 625, 2015 WL 6741999. The issue is not whether the appellate court | smight have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Milton v. K-Tops Plastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364.
V. Discussion
Hubbard argues that the Commission erred as a matter of law in requiring an injured worker to produce a physician’s opinion that he is permanently and totally disabled. He also argues that it is “utterly non-sensical” to find that he did not seek other employment due to a lack of interest after the Commission found that he was credible in stating that he had retired due to difficulties he experienced as a result of his work injury. Hubbard argues that because of these errors, the Commission erred in finding that he was entitled to only 50 percent wage-loss disability.
The Commission found that Hubbard had retired from Riceland because of his work-related injuries and the associated difficulties with that particular job but that Hubbard had improved following his surgeries. He could have, but did not, seek other work that he was capable of performing. We note that the statute says “the same or other employment.” The Commission apparently did not believe Hubbard’s testimony that he “can’t do anything.” Hubbard had a ten-pound lifting restriction and had reached MMI in June 2014. We hold that the Commission’s decision displays a substantial basis for denying Hubbard’s claim that he was permanently and totally disabled.
Further, we hold that there is substantial evidence to support the Commission’s decision that Hubbard sustained 50 percent wage-loss disability. The Commission pointed out that Hubbard is now seventy-three years old, that he has only a sixth-grade education, hand that his work history involves primarily unskilled manual labor. The Commission considered the appropriate factors, including the medical evidence and Hubbard’s motivation to return to work within his restrictions.
The Commission required Hubbard to prove that he was “unable to earn any meaningful wage,” which is an element of proving permanent and total disability. The Commission did not require a physician’s opinion in order to sustain his burden of proof. The Commission was simply pointing out that Hubbard had no physician’s opinion that he was permanently and totally disabled and that, in fact, his surgeons reported that Hubbard had improved after his surgeries. Having a physician’s opinion is just one way to demonstrate permanent and total disability.
Affirmed.
Abramson and Gladwin, JJ., agree.
. In November 2008, an ALJ found that Hubbard had also proved that he sustained a compensable neck injury and that surgery was reasonable and necessary. The Commission affirmed and adopted the ALJ’s decision. | [
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PHILLIP T. WHITEAKER, Judge
JjThis is an appeal from a plaintiffs verdict in a medical-negligence case. The appellant, Dr. Victor Williams, challenges the sufficiency of the evidence supporting a Pulaski County jury’s verdict in favor of the appellee, Bobby Shackelford. In addition, Dr. Williams assigns error to the award of prejudgment interest to Shackel-ford. We affirm the jury verdict; however, we reverse the award of prejudgment interest.
Shackelford was referred to Dr. Williams after a biopsy of a lesion in his colon indicated cancer. Dr. Williams ultimately performed an abdominal perineal resection (APR) on Shackelford, an operation that removed Shackelford’s rectum. Pathology studies conducted after the surgery, however, revealed that the tumor in Shackelford’s rectum was not cancerous. As a result of the surgery, Shackelford is required to wear a permanent colostomy. ^Shackelford filed a medical-malpractice suit against Dr. Williams, alleging negligence in both his failure to perform sufficient diagnostic testing procedures prior to surgery to determine the stage of the tumor and his failure to obtain informed consent.
A Pulaski County jury found that Dr. Williams was negligent and awarded Shackelford $1 million in damages on a general-verdict form. After the judgment was entered, Shackelford filed a motion seeking prejudgment interest and costs. The circuit court subsequently entered an order granting Shackelford’s motion, finding that he was “entitled to prejudgment interest from the date of the surgery.” On appeal, Dr. Williams challenges both the sufficiency of the evidence supporting the jury’s verdict and the circuit court’s granting of prejudgment interest.
I. Sufficiency of the Evidence
In his first argument on appeal, Dr. Williams contends that the circuit court should have granted his motion for directed verdict at trial. Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Padilla v. Archer, 2011 Ark. App. 746, at 5, 387 S.W.3d 267, 270 (citing Medical Assurance Co., Inc. v. Castro, 2009 Ark. 93, 302 S.W.3d 592). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. We do not try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
|3Pr. Williams argues on appeal that there was a lack of evidence regarding both negligence and informed consent. We are unable to reach the merits of his argument, however, because he failed to sufficiently preserve the issue for appellate review. Arkansas Rule of Civil Procedure 50(a) (2016) provides in part that a “motion for a directed verdict shall state the specif ic grounds therefor.” The purpose of this requirement is to ensure that the specific ground for a directed verdict is brought to the circuit court’s attention. Ouachita Wilderness Inst. Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (citing Stacks v. Jones, 823 Ark. 643, 916 S.W.2d 120 (1996)); Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). In order to preserve for appeal the issue of sufficiency of the evidence, the party moving for a directed verdict must state the specific ground upon which it seeks such relief. Ouachita Wilderness, supra. Failure to state the specific grounds for relief in a directed-verdict motion precludes this court’s review of the issue on appeal. Id. With these standards in mind, we turn to the motions made by Dr. Williams at trial.
At the conclusion of Shackelford’s case, Dr. Williams moved for directed verdict, stating as follows:
Your Honor, at the conclusion of the plaintiffs proof, the defense would move for a directed verdict on all issues in the case, damage, proximate cause, and standard of care.
I would also state for the record that we don’t believe their expert has established familiarity with the local standard to be able to give testimony for that. I’m not exactly sure specifically on the issue of damages, what they’re claiming, but if they’re claiming any medical bills other than the monthly colostomy, colostomy bag and maintenance, and no evidence of present value and the future, I assume we’ll talk more about this at jury instruction time, but I don’t want to waive anything, any elements of damages.
14After Dr. Williams’s case-in-chief, he renewed, his motion for directed verdict as follows:
The defense has rested and the defendant would renew its motion for directed verdict at the conclusion of all of the evidence and incorporate by reference all previous statements and arguments made in reference to that motion. And I know we’ve already discussed some jury instructions, and the court has determined what damages are going to be submitted or not submitted, so I think we’ve modified the part of my earlier motion by that already. But I would incorporate my previous statements and state that there’s no issue from which reasonable minds can differ on the issues presented in this case, and defendant would move for summary judgment [sic ], with directed verdict as a matter of law based on the facts and the evi* dence presented.
Thus, it is clear that Dr. Williams’s directed-verdict motion stated nothing more than that he “would move for a directed verdict on all issues in the case, damage, proximate cause, and standard of care.” His motions mentioned proximate cause only generically and did not specifically mention negligence or informed consent at all.
In Ouachita Wilderness, supra, the defendant moved for directed verdict by stating that the “plaintiff has failed to establish a negligence case. The plaintiff has failed to establish that any possible negligence was a proximate cause of the plaintiffs damages. The evidence clearly establishes, as a matter of law, there was an intervening cause which caused the damages to plaintiffs vehicle.” Id. at 413, 947 S.W.2d at 784. The supreme court declined to reach the arguments, however, holding that “[mjerely asserting that the plaintiff failed to establish a negligence case is not sufficient to apprise the trial court of the particular proof alleged to be missing.” Id. at 414, 947 S.W.2d at 785. Likewise, in Wal-Mart Stores, Inc., supra, Wal-Mart moved for directed verdict by stating that “the plaintiff hasn’t made the cause of action in this case because he hasn’t showed negligence and the negligence all falls on the plaintiff at all 1 ^opportunities to not take the medicine.” Wal-Mart Stores, Inc., 85 Ark. App. at 236, 148 S.W.3d at 754. This court held that Wal-Mart’s failure, in its directed-verdiet motion, “to specify in what respect the evidence was deficient caused the motion not to be specific enough to preserve the issue for appeal,” Id.
In this appeal, Dr. Williams specifically argues that Shackelford failed to prove negligence. He argues that the evidence was insufficient to show that his failure to perform an endorectal ultrasound prior to performing the surgery on Shackelford was negligent. He also specifically argues that the evidence was insufficient to show that he failed to obtain informed consent from Shackelford prior to performing the surgery. We find that neither of these specific arguments was presented to the trial court. We therefore conclude that Dr. Williams failed to preserve his argument for appeal and affirm on this issue without reaching the merits.
II. Prejudgment Interest
In his second argument on appeal, Dr. Williams argues that the award of prejudgment interest was erroneous. An award of prejudgment interest is a question of law to be decided by the court. S. Bldg. Servs., Inc. v. City of Fort Smith, 2014 Ark. App. 437, at 6-7, 440 S.W.3d 346, 350 (citing Aceva Techs., LLC v. Tyson Foods, Inc., 2013 Ark. App. 495, 429 S.W.3d 355). We give no deference to conclusions of law, which are reviewed de novo. Id.
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Baptist Mem’l Hosp.-Forrest City, Inc. v. Neblett, 2012 Ark. App. 191, at 3, 393 S.W.3d 573, 575. In Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997), the supreme court “embracefd] the general rule that prejudgment interest is not recoverable on claims that are neither liquidated as a dollar sum nor ascertainable by fixed standards. Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion.” Id. at 453, 938 S.W.2d at 568 (internal citations omitted). This standard is met if a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action. Baptist Mem’l Hosp., 2012 Ark. App. 191, at 3, 393 S.W.3d at 575, Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. Id., 393 S.W.3d at 575-76. Nevertheless, prejudgment interest is always dependent upon the initial measure of damages being determinable immediately after the loss and with reasonable certainty. Id., 393 S.W.3d at 576.
On appeal, Dr. Williams argues that the circuit court erred in awarding prejudgment interest. The crux of his argument is that the jury in this case rendered a general verdict on damages, and the verdict did not itemize how much was awarded for medical expenses, for pain and suffering, or for any other element of damages. Because it was a general verdict, he contends, there was no liquidated amount on which to base an award of prejudgment interest,
|7We find merit in this argument. With respect to Dr. Williams’s complaints about the general nature of the verdict, we note that in East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 549, 713 S.W.2d 456, 462 (1986), the supreme court stated that it was “unwilling to establish a precedent for allowing prejudgment interest where only a general verdict is returned which includes an award for personal injuries.” We are equally reluctant to allow prejudgment interest in this case.
Here, the jury was instructed as to the elements of damages for which Shackelford could recover. They included the nature, extent, and permanency of any injury; the reasonable expenses of any necessary medical care, treatment and services received and the present value of such expense reasonably certain to be required in the future; any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future; and any scars, disfigurement, and visible results of his injury. The general verdict, however, did not assign a precise computation or specific dollar value to any of these elements of damage. It is therefore simply not “possible to compute the amount without reliance on opinion or discretion” for any of them. See Baptist Mem’l Hosp., supra.
Moreover, there was no way to ascertain Shackelford’s damages at the time of loss. While some damages, such as Shackel-ford’s actual medical expenses, could have been calculated as of the date of his surgery, other damages, such as pain and suffering and disfigurement, could not be quantified at the time of the loss; the dollar value of those damages depended on the jury’s assessment of his injuries and suffering. Because damages must be capable of exact determination as to the time of accrual and the amount, see Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 450, 834 S.W.2d 136, 148 (1992), and here, they were not, prejudgment interest should not have been awarded. We therefore reverse on this point.
Affirmed in part; reversed in part.
Vaught and Murphy, JJ., agree.
. The supreme court clarified that it was not holding that prejudgment interest was never allowable in tort claims, noting that “an award of prejudgment interest is not dependent on whether the action is in contract or tort.” Woodline Motor Freight, 327 Ark. at 452, 938 S.W.2d at 568. It cautioned, however, that when a plaintiff's damages are “neither liquidated as a dollar sum nor ascertainable by fixed standards,” a circuit court will err in awarding the plaintiff prejudgment interest. Id. at 454, 938 S.W.2d at 569. | [
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BRANDON J. HARRISON, Judge
hThe Arkansas Department of Human Services (DHS) appeals an order of the Pulaski County Circuit Court that dismissed DHS’s petition for dependency-neglect and closed the case. DHS argues that the circuit court clearly erred and that Tomisha Lewis’s children are dependent-neglected as a result of neglect and parental unfitness. We affirm.
On 4 March 2016, DHS filed a petition for emergency custody of three-year-old Z.L., one-year-old L.L., and one-month-old T.U. The accompanying affidavit explained that Tomisha Lewis and T.U.’s father, Tony Ussery, had a heated argument on the staircase outside Ussery’s apartment and that the baby, who was strapped in a car seat, inadvertently fell down the stairs. According to one of the responding police officers, the car seat was “turned over on the ground covered in dirt and gravel while the parents were still arguing and fighting.” The baby was taken to Arkansas Children’s Hospital to be examined, and |2the other two children, who were in a car nearby, were seen at the hospital as a precaution. Both parents were arrested for domestic battery and child endangerment. The affidavit noted that Lewis did not have a permanent residence and stayed with her grandmother, her cousin, or Us-sery. The affidavit also noted that Lewis had initially given the police a false name “in hopes that her children would not go into DHS custody.” The affidavit expressed concern that T.U. could have been severely injured and that “the children were inadequately supervised as well as left without a caregiver upon the arrest of the mother and father.” The Pulaski County Circuit Court issued an ex parte order for emergency custody and, on March 9, found probable cause to continue DHS’s custody of the children. The order set an adjudication hearing for April 6.
On that date, the following testimony was presented. Little Rock Police Officer Stephen Lichti testified that on 1 March 2016, at approximately 5:00 a.m., he responded to calls reporting a loud disturbance between a male and a female in the parking lot of an apartment complex. As Lichti turned the corner into the parking lot, he could hear yelling and screaming and observed two people (Lewis and Us-sery) at the top of a steep stairwell landing. He rushed up the stairs and physically separated the two, but Lewis continued to charge at Ussery. Lichti saw the baby in the carrier at the base of the stairs, sitting out in the rain; Lichti’s partner attended to the baby while he dealt with the parents. According to Lichti, Lewis was more interested in fighting than checking on her baby. Lewis reported to him that she had attempted to leave the baby with Ussery, which is what caused the scuffle: “She took him [the baby] upstairs, knocked on the door, and I guess he [Ussery] opened the door and ran with the child downstairs and put him on the car as she was leaving. | ¡¡She turned around and brought him back up in the landing at the top, and that’s where the—the fight occurred.” Lichti also said again that the baby was in the rain, that it was a cold night, and that the baby “had gravel, dust, and dirt on his forehead and kind of in his face area.” Lichti explained that Ussery was very intoxicated and that Lewis knew he was intoxicated, because they had spent most of the night together. Ussery repoi*ted to Lichti that he [Ussery] heard a loud banging on his door; looked out and saw the carrier sitting outside and Lewis running back to her car; that he grabbed the baby, ran downstairs, and put the baby on her car; and that Lewis grabbed the baby and ran back upstairs, and they proceeded to fight on the landing.
Lewis testified that she had been residing at Dorcas House for about a week and that the children could stay there with her. She also said she was currently not working, under the rules of Dorcas House, but would be able to return to her previous employment. She explained that on the night of the altercation, she and Ussery had been out together and T.U. was with them. At approximately 3:00 a.m., they went to pick up her other two children, who were sleeping at her cousin’s house. They all returned to Ussery’s apartment, but when they pulled into the parking lot, Ussery said he did not want her and the children to stay there. He told them to leave, Lewis got upset, and she told him that he was going to keep his child (the baby).
As he went up, I went up behind him. He hurried up and closed the door. I was knocking light at first and he wouldn’t open the door so, you know, I began to knock harder; your son, get your son, your son is out here. He came to the door, opened the door. As he opened the door, I, you know, started walking back to the car. He came down, brought him down. I was in the process—after he was getting him in the car, I got back out and bringing him back to him; no, you’re going to get your son. ... We made it to the top of the stairs and when I gave him to him, you know, I turned around, 14like, whatever, I’m fixing to go. ... He say, you take him ... he set him down. It’s just like I said once before, the car seat, it was too big to set on the stairs. ... [T]he car seat went down.
According to Lewis, the carrier was sitting right side up and had not flipped. She said that T.U.’s car seat being knocked down the stairs was “one of the scariest moments of my life,” that she physically “charged at” Ussery in reaction to the fall, and that it was “more so of a tussle than a fight.” She also said that during this time, her other two children were asleep in the car. She claimed that she and Ussery were going down the stairs when the police arrived.
On cross-examination, Lewis said that she wasn’t really going to leave the baby with Ussery and that she was just angry. She acknowledged that she did not immediately check on the baby when he fell but said that she could see him and “he was setting [sic] there and he was perfectly okay.” She also admitted, as we have mentioned, that she lied to the police officers about her name because she did not want her kids to “go to DHS.”
DHS asked the court to find the children dependent-neglected as a result of neglect and parental unfitness. Lewis’s attorney argued that Lewis had “responded poorly” but that this was not a case of dependency-neglect. The ad litem argued that Lewis had put her emotional needs before those of her children and urged the court to find depedency-neglect.
The court announced it was dismissing the petition, stating, “This is an accident, unfortunate accident. These things happen in a short period of time. I find mom is completely credible. I find mom more credible than the police offieer[.] ... I believe her, she wasn’t going to leave the baby. She’s trying to make a point.” The court also stated that there was “nothing wrong with being out all night long with your children” and that | BLewis had “learned from this situation.” The court entered a written order finding that “DHS failed to meet its burden of proof that the juveniles are dependent-neglected.” The court ordered the children returned to Lewis’s custody and closed the case. DHS appealed.
A dependent-neglected juvenile is one at substantial risk of serious harm as the result of, among other things, abandonment, abuse, or neglect. See Ark. Code Ann. § 9—27—303(18)(A)(i), (ii), and (v) (Repl. 2015). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B). The standard of review is de novo, but we, giving due deference to the circuit court’s superior position to observe the parties and judge the credibility of the witnesses, will not reverse the circuit court’s ruling in a dependency-neglect case unless the ruling was clearly erroneous or clearly against the preponderance of the evidence. Churchill v. Ark. Dep’t of Human Servs., 2012 Ark. App. 530, 423 S.W.3d 637. 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. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
DHS argues that the evidence in this case shows that the children were placed at a substantial risk of serious harm “as a result of the mother’s decision to focus on physically attacking [Ussery], rather than checking on the conditions of a child who had just fallen down a long flight of stairs and two other unattended toddlers in a vehicle.” DHS contends that the circuit court’s order erroneously focuses only on the actual fall of the baby, which was undisputedly an accident. But the court overlooked the circumstances surrounding the accident, including (1) Ussery’s obvious intoxication, which Lewis was aware of; and (2) | ^Lewis’s insistence that Ussery keep the baby, although Lewis had other options, including returning to her cousin’s house with the children. DHS says that the circumstances surrounding this “accident” warranted protecting these children by bringing them within the supervision of the court so Lewis could receive reunification and parenting services.
Lewis counters that the children were never left alone, that she never lost sight of them, and that the baby was not injured by the fall. Lewis acknowledges the “unfortunate accident” and that her actions were “a poor reaction to the situation.” She believes that the circuit court correctly determined that the children were not dependent-neglected and that DHS is asking this court to reweigh the evidence, which is improper.
There is no dispute that the baby’s fall was an accident. Based primarily on the circuit court’s credibility determinations, to which we must defer, we hold that the circuit court did not clearly err in finding insufficient evidence of dependency-neglect and dismissing this case.
Affirmed.
Whiteaker, Vaught, and Brown, JJ., agree.
Hixson and Murphy, JJ., dissent. | [
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JOHN DAN KEMP, Chief Justice
11 Appellants Jane Lipscomb Stone, individually and as executrix of the estate of Madolene Stone, deceased; Benjamin Hicks Stone III; Ruth Stone Jones; Margaret Stone Cotter; Harriet Stone Evans; Patricia Marty Stone; Edward Durell Stone III; Maria Francesca Stone;' Fiona Campbell Stone, and Matthew Whelpley (“Stone heirs”) appeal two orders of the Washington County Circuit Court quieting title to Fayetteville property in Washington Regional Medical Center (“WRMC”) and granting summary judgment in favor of WRMC. For reversal, the Stone heirs present six allegations of error. We affirm.
li>I. Facts
On September 8,1906, Stephen K. Stone and Amanda Stone (“the Stones”), the original grantors, conveyed to the City of Fayetteville (“City”) a block of property upon which to build a hospital. Their warranty deed (“the 1906 Deed”) contained a reversionary clause in favor of the Stones or their heirs. This reversionary interest would trigger if the City failed to have a hospital constructed upon the property and in operation within four years from September 8,1906, or if the property should at any time not be used and maintained for hospital purposes. The 1906 Deed further established a Board of Control to manage the hospital.
The Stones amended their 1906 Deed by filing a second deed (“the 1909 Deed”) on February 24, 1909. The 1909 Deed recited that its stated purpose was to revise “certain conditions providing for a reversion of the premises which may tend to retard the establishment and maintenance of said hospital.” The 1909 Deed recognized the City’s failure- to adhere to the terms of the first deed and added a condition that if the hospital’s location changed, the proceeds of the property would constitute a charitable trust for the maintenance of the hospital at a new location.
In 1912, the hospital opened as Stone Hospital. In 1914, that hospital reorganized as Fayetteville City Hospital (“FCH”) and operated as a charitable corporation. On April 30, 1914, the Washington County Circuit Court entered a decree approving certain articles of association of FCH, which was the successor to the Board of Control. These articles incorporated the terms of the 1909 Deed. From 1906 to 1978, the City owned and held legal title to the FCH property. In 1978, the City conveyed the property to FCH by laresolution of the city council. In 1991, FCH conveyed the property by quitclaim deed back to the City, and FCH continued to operate the facility.
In 2010, the City offered $172,500 to WRMC for a one-acre piece of property to construct a roundabout to ease traffic congestion. Thomas J. Olmstead, WRMC’s general counsel, responded by sending a memorandum to the City expressing a desire to acquire the property and offered to exchange the roundabout site for the trust property. WRMC and the City agreed to the land swap. The City conveyed the FCH property to WRMC, and WRMC conveyed an acre of its property to the City for the construction of the roundabout.
On July 15, 2014, WRMC filed a petition to quiet title in the FCH property. In its petition, WRMC claimed to be the legal owner of the property after having acquired fee-simple title from the City by quitclaim deed and filed of record. WRMC alleged that it had been in continuous and exclusive possession and use of the property with no adverse occupants since October 13, 2013. The Stone heirs responded that title should be quieted in them because the City had failed to establish and operate the Stone Hospital pursuant to the terms of the charitable trust and that the City’s actions constituted a rejection of the trust. The Stone heirs also asserted a counterclaim for breach of trust, sought to quiet title, and moved to dismiss WRMC’s petition for failure to join indispensable parties. The circuit court denied the Stone heirs’ motion to dismiss and found that the City was an indispensable party to the action.
WRMC and the City moved for summary judgment. Following a hearing, the circuit court granted WRMC’s motion for summary judgment, quieted title in WRMC, | ¿dismissed with prejudice the Stone heirs’ counterclaim, granted the City’s motion for summary judgment, and dismissed with prejudice the Stone heirs’ cross-claim against the City. The circuit court ruled as a matter of law that the 1906 and 1909 Deeds were clear and unambiguous and that WRMC had satisfied the elements of a quiet-title action. Additionally, in its decree quieting title, the circuit court ruled that WRMC had acquired fee-simple title from the City and was the legal owner of the property; that WRMC had been in continuous and exclusive occupancy, possession, and control of the property since 2011; that the requisite statutory notices had been properly served; and that WRMC had met the requirements to quiet title pursuant to Arkansas Code Annotated sections 18-60-501 to -511 (Repl. 2015).
The Stone heirs appealed the circuit court’s orders to the court of appeals, which affirmed. Stone v. Washington Reg’l Med. Ctr., 2016 Ark. App, 236, 490 S.W.3d 669. The Stone heirs filed a petition for review, which we granted. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766.
II. Arguments
On appeal, the Stone heirs present six allegations of error. We discuss them in tandem as (1) whether the language in the 1906 and 1909 Deeds created a trust property reverting back to the Stone heirs; (2) whether the Stone heirs had standing to assert any interest in the property; (3) whether WRMC met its burden of proof in its quiet-title action; and (4) whether FCH was an indispensable party to WRMC’s quiet-title action.
A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, 488 S.W.3d 513. The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Talbert v. U.S. Bank, 372 Ark. 148, 271 S.W.3d 486 (2008). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517.
On appellate review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13. We view 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. Hotel Assocs., Inc. v. Rieves, Rubens & Mayton, 2014 Ark. 254, 435 S.W.3d 488.
A. Stone Heirs’ Interest
1. Construction of the deeds
First, we examine the language of the 1906 and 1909 Deeds to determine whether the Stone heirs have any rever-sionary interest in. the property. They contend that the circuit court erred in granting summary judgment and ruling that, as a matter of law, the 1909 Deed released their possibility of reverter expressly provided for in the 1906 Deed.
UThis issue requires this court to construe the language of the 1906 and 1909 Deeds. The basic rule in the construction of deeds is to ascertain and give effect to the real intention of the parties, particularly of the grantor, as expressed by the language of the deed. Barton Land Servs., Inc. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430; Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). The intention of the parties must be gathered from the four corners of the instrument itself, if that can be done, and when so done, it will control. Gibson, 256 Ark. 1035, 512 S.W.2d 532. The intention of the parties is to be gathered not from some particular clause, but from the whole context of the agreement. Id. Every part of the deed should be harmonized and reconciled so that all may stand together and none be rejected. Barton Land Servs., 2013 Ark. 231, 428 S.W.3d 430. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful. Id. In Arkansas, we recognize a presumption that a grantor intends to convey his entire interest by his deed. Id, 428 S.W.3d 430. But a grantor may convey a particular interest, and, when this is done, only that interest is conveyed, and the grantor reserves to himself all he has not conveyed. Id., 428 S.W.3d 430.
Further, in construing the deeds, we must also determine whether the Stone heirs held a reversionary interest in the property. This court has defined reversion as the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. Wilson v. Pharris, 203 Ark. 614, 158 S.W.2d 274 (1941). We have stated that, unlike a remainder, which must be created by deed or devise, a reversion arises only by operation of law. Id., 158 S.W.2d 274. The grantor being a [ 7reversioner in point of time can dispose of the fee absolutely by will or by deed. Id., 158 S.W.2d 274.
The 1906 Deed states as follows:
This conveyance is a gift to the City of Fayetteville, as a testimonial of our affection for the people among whom have passed our lives, and for the purpose of enabling the City of Fayetteville to establish and to maintain permanently a Hospital, which shall be known as the Stone Hospital, and is made on the following express terms and conditions:
First—if the City of Fayetteville shall fail to have a Hospital established and put in operation on the land hereby conveyed within four years from the date of this conveyance the title to said land shall revert to us or to our heirs.
Second: If a Hospital shall be established on the said lands within four years after the date of this conveyance and shall at any future time be abandoned or ceased to be used and maintained for Hospital purposes then the title to the said real estate shall revert to us or our heirs.
Thus, according to the 1906 Deed, the property would revert from the City to the Stones if two terms and conditions were not met. First, the property would revert to the Stones if the City failed to establish “and put in operation” a hospital on the FCH property within four years of the conveyance. Second, the property would revert to the Stones if the hospital became “abandoned or ceased to be used and maintained for Hospital purposes.”
The issue then is whether the reversion-ary interest of the 1906 Deed was extinguished in the 1909 Deed, which contains the following language:
WHEREAS, said parties of the first part [the Stones], on the 8th day of September 1906 by their deed of gift of that date conveyed unto said party of the second part [City of Fayetteville, Arkansas] ... [the Trust Property] ... as a testimonial of the affection of said grantors for the people among whom they have passed their lives, and for the purpose of enabling said city to establish and permanently maintain a Hospital: and,
WHEREAS, in the said deed of September 8th, 1906 there are certain conditions providing for a reversion of the premises which may tend to retard the establishment and maintenance of said Hospital.
Therefore, the said parties of the first part in consideration and of one dollar to them paid by said party of the second part, and for the purpose of more effectually | Ssecuring to said city and its inhabitants the benefits of such Hospital, do hereby grant, bargain, sell and convey unto said party of second party, the lands and premises above described to be by the said city, held in trust and maintained as a city Hospital. And in the case it should be determined hereafter to change the location of said Hospital, to some other point in said city, in such case the entire proceeds of the above described premises shall constitute a trust fund to be devoted exclusively to the establishment and maintenance of such City Hospital at the point selected; and no such change of location shall be made except by the concurrent action of the board trustees named in said deed of September 8, 1906 (or them successors in trust) and the council of said city.
Prior to the 1909 Deed, the Stones only possessed a reversionary interest that could be released. Indeed, they released that reversionary interest by creating a charitable trust of the property to be “held in trust and maintained as a city Hospital” with the condition to establish another hospital in the event that the location changed. The final paragraph does not contain a possibility of reverter, and given the absence of such language, we agree with the circuit court’s ruling that the 1909 Deed effectively released and terminated any reversionary interest of the Stones that was created in the 1906 Deed. Thus, as a matter of law, we hold that the circuit court properly ruled that the 1906 and 1909 Deeds were clear and unambiguous and that the 1909 Deed terminated the possibility of reverter contained in the 1906 Deed, thereby terminating the Stone heirs’ interest in the property.
2. Standing
The Stone heirs also assert, as an alternative argument, that the City breached its fiduciary duties in its administration of the 1909 Deed’s charitable trust. In their brief, they make numerous allegations of “legal maneuvering” on the part of WRMC. They cite Arkansas Code Annotated section 28-73^05(c) (Repl. 2012), the statute concerning the enforcement of a charitable trust, in support of their position.
|flWhen a charitable trust is created, legal title is passed to the trustee to hold it for the benefit of a charitable purpose. Covenant Presbytery v. First Baptist Church, 2016 Ark. 138, 489 S.W.3d 153. This court has stated that in creating a charitable trust, the settlor must describe a purpose of substantial public interest. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). “The settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” Ark. Code Ann. § 28-73-406(c).
In this instance, the Stone heirs’ argument is misplaced because they are not the settlors who established the charitable trust in the 1909 Deed. Nor are they the “among others” contemplated in section 28-73-406(c) because they, as the settlors’ heirs, no longer possess an interest in the property. We therefore conclude that they have no legal standing to argue any issues concerning the enforcement of the charitable trust.
B. WRMC’s Quiet-title Action
1. WRMC’s burden of proof
Next, we turn to the issue of whether WRMC met its burden of proof in the quiet-title action. A prima facie case to quiet title requires a showing that the plaintiff has legal title to the property and is in possession. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000). In an action to quiet title, the plaintiff has the burden of establishing his or her title to the land. Id., 19 S.W.3d 603.
We agree with the circuit court’s ruling that WRMC made a prima facie case of quieting title because it provided evidence of both legal title and possession. First, in Improving legal title, WRMC’s October 6, 2011 quitclaim deed showed that WRMC acquired fee-simple title to the property from the City and that WRMC owned the property. Second, in proving possession, WRMC provided evidence that it had been in possession of the property since October 6, 2011, when it acquired legal title. The circuit court noted in its summary-judgment order that WRMC provided the affidavit of Dan Eckels, its chief financial officer, in support of its motion for summary judgment. Eckels swore that WRMC had “assumed the obligations of managing and operating the facility located on the property in 1991” and that WRMC had been in “continuous possession of the property since 1991 and ha[d] been in exclusive and continuous possession of the property since October 13, 2011, the date on which WRMC acquired the legal title to the property from the City.” Based on this evidence, we conclude that WRMC satisfied the elements of legal title and possession to sustain a quiet-title action. Thus, we hold that, as a matter of law, the circuit court properly quieted title to the property in WRMC.
2. Indispensable party
Lastly, as named parties in the quiet-title action, the Stone heirs filed a motion to dismiss asserting that WRMC should have named the City and the Board of Control, later Inknown as FCH, as respondents. The circuit court denied the Stone heirs’ motion to dismiss. On appeal, they argue that the circuit court erred in finding that FCH was not an indispensable party to the quiet-title action. They have not challenged the circuit court’s finding on the City.
If FCH has an interest in the real property, it shall be joined as a party in the action. See Ark. R. Civ. P. 19 (2016). Here, WRMC attached to its petition to quiet title an exhibit of a resolution, passed on July 18, 2011, that FCH liquidated and dissolved as a nonprofit corporation. As a nonentity, FCH would not have ’ had an interest in the action. For this reason, we hold that the circuit court did not err in ruling that FCH was not an indispensable party to the quiet-title action. Accordingly, we affirm on this issue.
Affirmed; court of appeals opinion vacated.
Baker and Hart, JJ., concur in part; dissent in part.
. The dissent misstates the majority opinion in two respects. First, the dissent claims that the Stone heirs lack standing to raise the argument that WRMC did not prove the elements of its quiet-title action. WRMC, in its petition to quiet title filed July 15, 2014, named the Stone heirs as defendants in its quiet-title action. The circuit court subsequently quieted title in WRMC and ruled that WRMC remained the lawful owner of the property. The Stone heirs appealed. This court has long recognized the right of one who feels aggrieved by an order of a court to appeal to a higher tribunal. See Ark. State Highway Comm'n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966). Because the Stone heirs were named parties to the underlying quiet-title action, they have standing to. appeal the judgment.
Second, the dissent notes that a quitclaim deed conveys a grantor’s complete interest. In its decree quieting title, the circuit court ruled that WRMC "acquired fee simple title to the property” in 2011. Further, in its order granting summary judgment, the circuit court found that "the City held fee simple title to the real property at the time it delivered its quitclaim deed ... to [WRMC].” | [
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Josephine Linker Hart, Judge.
The jury convicted appellant, Jason Craig Pond, of five criminal offenses, and he was sentenced to twelve years in the Arkansas Department of Correction for robbery; six years and a $1000 fine for battery in the second degree; one year for breaking or entering; a fine of $1000 for criminal attempt to commit residential burglary; and one year in the county jail for theft of property to run concurrently. Appellant asserts for his sole point on appeal that the trial court erred by fading to grant his motion for directed verdict on the robbery charge. We affirm.
On July 16, 1998, at approximately 9:30 p.m., appellant, Mark Crabtree, and Thomas Gill went to the home of Grace Walker. While Gill acted as a lookout, Crabtree and appellant entered the house and stole Ms. Walker’s purse containing $37, which they used to buy two thirty-packs of beer. According to Crabtree and Gill, they passed out at appellant’s apartment after drinking the beer. Later, they were awakened by appellant, who convinced them to return with him to Ms. Walker’s home to obtain more money. They arrived at Ms.Walker’s home at approximately 3:15 a.m., and appellant knocked on the door. Ms. Walker, who had been expecting the persons who stole her purse to return, opened the door and stepped onto the porch. Appellant told her that their car had stalled and asked her for a “jump.” When Ms. Walker replied, “I don’t know what a jump is,” Crabtree and Gill, who were standing on the porch, laughed. Appellant hit Ms. Walker on the cheek with his fist, grabbed her by the throat, and slammed her down on the porch, causing injuries to her face, chest, and knees. Ms. Walker’s daughter, Miriam, came to the door and began screaming, which caused the three young men to run away.
Appellant does not dispute that he used force against Ms.Walker, but argues the State failed to prove the mens rea element of the crime of robbery because it did not show that the force he used when he hit Ms. Walker was for the purpose of committing a theft. “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102 (Repl. 1997). A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). We review the evidence in a light most favorable to the State and affirm if there is substantial evidence to support the verdict. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Evidence is substantial, whether direct or circumstantial, if it is of sufficient force to compel a conclusion one way or the other with reasonable certainty. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999).
Appellant contends that he used force, not to commit a theft, but because Crabtree and Gill laughed at him when “Ms. Walker gave him a look like he was stupid.” Further, he maintains that the State failed to show that he intended to commit theft when he returned to Ms. Walker’s home. He argues that neither he nor his companions asked Ms. Walker for money, demanded anything from her, attempted to enter her home, took property from her or planned to use force to take property from her.
Intent can rarely be proved by direct evidence, but may be inferred from the circumstances of the crime, and jurors may draw upon common knowledge and experience to infer intent. See Smith v. State, 65 Ark. App. 216, 986 S.W.2d 137 (1999). Here, the circumstances surrounding the crime provide substantial evidence from which the fact-finder could conclude that appellant intended to commit robbery. Appellant entered Ms. Walker’s residence at approximately 9:30 p.m. the previous evening, stole her purse, and used money that he found in the purse to buy beer. At approximately 3:00 a.m., appellant awakened Crabtree and Gill and persuaded them to return with him to Ms. Walker’s home to find more money to purchase “pot” and “crank.” The three entered Ms. Walker’s front porch at approximately 3:15 a.m., and after she stepped out of her home onto her porch, appellant physically attacked her. Neither appellant nor his accomplices fled the scene until the victim’s daughter began screaming.
Considering that appellant had stolen property from the victim only hours earlier, voiced his intent to return to her home to get more money, and then followed through by going to her home during the early hours of morning where he physically attacked Ms. Walker when she stepped outside, and stopped the attack only when her daughter made her presence known by screaming, there was sufficient evidence from which the trier of fact could infer appellant used force to commit a theft. See Stewart v. State, supra. Viewing the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support appellant’s robbery conviction. Id.
Additionally, appellant contends that the State failed to adequately corroborate the accomplice testimony of Crabtree and Gill. Appellant, however, failed to preserve this argument for appeal. Appellant, who bears the burden of showing that a witness is an accomplice, must obtain a declaration by the trial court that the witness is an accomplice as a matter of law or submit this question to the jury. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994). Failure to do so precludes appellant from raising the witness-corroboration rule on appeal. Windsor, supra. The abstract of the record contains nothing showing that Crabtree and Gill were declared by the trial court to be accomplices as a matter of law or that this question was presented to the jury and, therefore, we do not address this issue. Franklin, supra.
Affirmed.
Pittman and Stroud, JJ., agree. | [
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Sam BIRD, Judge.
Barb’s 3-D Demo Service, a small business owned by Barbara Dorris, brings this appeal from the Board of Review contending that the Board erred in finding that food demonstrators working for her business are employees rather than independent contractors and that Barb’s is not exempt from paying unemployment insurance taxes. We affirm.
In early 1998, Karen Whitman, a demonstrator who had worked for Barb’s, made a claim for unemployment benefits. The Employment Security Division determined that the demonstrators were employees of Barb’s rather than independent contractors, and, therefore, subject to the Arkansas Employment Security Law. Barb’s appealed to the Board of Review.
A hearing was conducted on July 8, 1998, at which time Dorris testified regarding Barb’s usual method of doing business. She said that after a sales representative or broker contacts her about arranging a product demonstration in a store, such as Wal-Mart, Dorris contacts people by phone to see if they are available, and that if they are, she tells them at which store the product is to be demonstrated. The products to be demonstrated are provided by the company and the store, not by Barb’s, and the demonstrators are reimbursed for any supplies used to demonstrate the product. However, Dorris stated that if the demonstration requires certain equipment, such as a skillet, toaster oven, or card table, the demonstrators are required to supply these items. Many of the people who work for her also perform demonstrations for other agencies similar to Barb’s.
Dorris testified she has a list of about 175 people, and when she contacts them, she informs them that they are independent contractors, and she does not withhold taxes from their paychecks. She stated that the demonstrators take a “demo form” with them, fill it out at the end of the demonstration, send it to her, and she sends it the company for which the demonstration was held. She stated that when she contacts a person to do a demonstration, she negotiates the pay; sometimes she pays more, depending on the difficulty she experiences in getting someone to do the demonstration. The amount of the fee that the vendor is willing to pay for a demonstration is also a factor in how much Dorris will agree to pay a demonstrator.
Dorris stated that she does not train the demonstrators, does not require a dress code, does not call the store to make sure that a demonstrator showed up, does not tell the demonstrators when to take breaks, and does not regulate their working hours. If a demonstrator is unable to work on a day that she is scheduled to work, then the demonstrator is responsible for finding a replacement.
Dorris testified that she told Whitman that she was an independent contractor and would send her a 1099 form after Whitman had earned $600.
Nancy Harrison testified she has done demonstrations for about thirteen years and has been doing demonstrations through Barb’s for approximately three years. She stated that Barb’s has never withheld any money for taxes from her checks and that she considers herself to be an independent contractor. She stated that she works for many agencies, and when they call her, she will find out the location where the demonstration is to be held and the days that the vendor will require her to perform the demonstration.
For the Board’s review, Barb’s also submitted several affidavits and letters from women who had worked as demonstrators for her and who stated that they considered themselves to be independent contractors, that Barb’s did not withhold federal or state taxes from their paychecks, that they may accept or decline a job, and that Barb’s does not furnish any supplies, equipment or training.
Jim Waits, chief of contributions for ESD, testified that after Whitman filed her claim, an investigation was conducted by ESD. He stated that the department contacted Dorris and obtained additional information from her. He stated that he determined, based upon the requested information, that an “employment situation” existed.
Based upon the evidence presented, the Board of Review found that because the evidence established that the demonstrators were employees of Barb’s and not independent contractors, Barb’s is not exempt from paying unemployment insurance taxes. The Board applied factors set forth in Ark. Code Ann. § ll-10-210(e) (Repl. 1996), which provides:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and
(2) Such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
The Board found that Barb’s had not proven any of the three factors required in order to establish that an employee/employer relationship did not exist between her company and the demonstrators; therefore, Barb’s was not exempt from paying unemployment taxes. Barb’s brings this appeal contending that the Board of Review erred in determining that it had failed to met the statutory elements as set forth in Ark. Code Ann. § ll-10-210(e) and contends that Barb’s is entitled to an exemption from paying unemployment insurance taxes.
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Steinert v. Director, 64 Ark. App. 122, 979 S.W.2d 908 (1998); Network Design Eng’g, Inc. v. Director, 52 Ark. App. 193, 917 S.W.2d 168 (1996); Stepherson v. Director, 49 Ark. App. 52, 895 S.W.2d 950 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Steinert v. Director, supra. We review the evidence and all reasonable inferences deduci-dle therefrom in the light most favorable to the Board’s findings. Steinert v. Director, supra; Network Design Eng’g, Inc. v. Director, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Steinert v. Director, supra; Stepherson v. Director, supra.
In order to establish the exemption set forth in section 11-10-210(e), an employer must prove each of the three requirements in subsections (1)-(3). Steinert v. Director, supra; Network Design Eng’g Inc. v. Director, supra; Morris v. Everett, Director, 7 Ark. App. 243, 647 S.W.2d 476 (1983). If there is sufficient evidence to support the Board’s finding that any one of the three requirements is not met, the case must be affirmed. Steinert v. Director, supra; Network Design Eng’g Inc. v. Director, supra.
In the case at bar, the Board determined that Barb’s had failed to satisfy all three of the statutory requirements. Because we agree with the Board that Barb’s does not satisfy the third statutory element, we affirm the Board’s decision that an employer/employee relationship exists between Barb’s and the demonstrators such that it would subject Barb’s to the payment of unemployment insurance taxes. Consequently, it is unnecessary for us to address the remaining two statutory requirements.
Under Ark. Code Ann. § ll-10-210(e)(3), an individual performing services for wages is deemed to be an employee, for purposes of unemployment insurance taxes, unless:
Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
Barb’s argues that the Board erred in finding that it had not proven that the demonstrators were customarily engaged in the independently established trade of demonstrating. It contends that because her employees perform demonstrations for agencies other than Barb’s, they should be considered to be independently established in the trade of demonstrating.
The Board found “the evidence did not establish ... any significant ‘business investment’ by the demonstrators, nor any substantial number of direct contacts by demonstrators with vendors in connection with obtaining assignments. Neither has it been shown that demonstrators successfully operate as businesses independently of entities like the employer.”
In Sample & Sell v. Labor & Ind. Relations Comm’n, 764 S.W.2d 109 (Mo. Ct. App. 1988), the Missouri Court of Appeals, in addressing the issue of whether demonstrators were independent contractors or employees, construed a Missouri statute, which is very similar to the Arkansas statute, and stated that if an individual is dependent on another entity to obtain work, then that individual cannot be considered to be an independent contractor. The Missouri court stated that the reason for the third statutory requirement is to include in coverage those people whose activities are free from the detailed control of an employer, but whose independence is, nonetheless, not the kind of independence that commonly rids the true entrepreneur of the risk of employment. Id. Therefore, the Missouri court held that since the demonstrators were not capable of providing their services without dependence upon another entity, they are not engaged in an entrepreneurial enterprise.
The same issue was addressed and a similar statute construed by the Supreme Court of Illinois in Jack Bradley Inc. v. Department of Emp. Sec., 585 N.E.2d 123 (Ill. 1991), in which the court held that the Illinois act “contemplates that one who is engaged in an independent enterprise is an individual who has a proprietary interest in such business to the extent that he can operate [the] same without hindrance from any individual whatsoever and whose business also is free from control.” 585 N.E.2d at 130 (quoting from Murphy v. Daumit, 56 N.E.2d 800, 805 (Ill. 1944)).
In the case at bar, it is clear that although Barb’s exercised little control as to the demonstrators’ working conditions and the demonstrators were free to accept or reject a job and could work for other agencies similar to Barb’s, they also were not independently established in a trade, occupation, profession, or business of the same nature as that involved in the service performed.
We do not find persuasive the fact that the demonstrators had working relationships with other agencies because the demonstrators may have simply had a relationship similar to the one they had with Barb’s in that they were offered only part-time employment. We agree with the test set forth in Jack Bradley Inc. v. Department of Emp. Sec.: “The focus of any inquiry should rather be upon whether Bradley, Inc.’s food demonstrators had businesses or occupations which were capable of operation independent of a relationship with Bradley, Inc., or other such ‘demo’ companies, i.e., operations directly with vendors.” 585 N.E.2d at 132.
Based upon the foregoing, we find substantial evidence to support the Board’s findings that Barb’s did not meet the statutory requirements set forth in Ark. Code. Ann. § ll-10-210(e) to prove that the demonstrators working for her company were independent contractors rather than employees, and that Barb’s does not qualify for an exemption from unemployment insurance taxes.
Affirmed.
Jennings, J., agrees.
Meads, J., concurs. | [
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John B. Robbins, Chief Judge.
Appellant Charles Frances filed a claim for workers’ compensation benefits, alleging that he suffered a compensable back injury while working for appellee Gaylord Container on September 23, 1996. The ALJ found the claim to be compensable, and ordered the appellee to cover related medical expenses and pay temporary total disability benefits from September 3, 1997, through January 7, 1998. However, on appeal to the Workers’ Compensation Commission, the Commission reversed the decision of the ALJ and awarded no benefits pursuant to its finding that Mr. Frances failed to prove that his back condition was the result of any work-related incident. Mr. Frances now appeals, arguing that the Commission’s decision is not supported by substantial evidence. We agree, and we reverse and remand for an award of benefits.
When the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
Brian Hamblin, a co-worker of Mr. Frances and employee of Gaylord Container for eight-and-one-half years, testified about the alleged September 23, 1996, incident. Mr. Hamblin stated that, on that day, a paper machine heated up and a sheet broke, and apparently Mr. Frances went to fix the problem. About twenty minutes later, Mr. Frances told him that, while attending to the paper machine, he was “hit by the scanner” and was “pinched in the machine.” When Mr. Frances told Mr. Hamblin about being injured, Mr. Hamblin noticed that the back of his shirt was ripped and he had a cut on his arm. When asked if he was going to go to the doctor, Mr. Frances replied, “No, I think it’s all right.” How ever, according to Mr. Hamblin, Mr. Frances filled out an accident report with the foreman. Mr. Frances continued working, but two or three days later he told Mr. Hamblin that his back was still hurting and “once or twice he just laid up on the counters.” Mr. Hamblin testified that, after the accident, Mr. Frances would limp around at work and that he had never known him to do- that before.
Randy Womack, an employee of four years, was also working on the day of the alleged accident. He testified that “when he came out around the back of the machine, his arm was bleeding and his shirt was torn, and he told me that the scanner had caught him.” About three days later, Mr. Frances complained to Mr. Womack of back pain and numbness in his leg.
Bobby Young, Mr. Frances’s auto mechanic, testified that in November 1996 Mr. Frances brought his car in and was walking crooked and complaining of hurting his back at work. Mr. Young had been his mechanic for ten years and had never seen him in this condition.
Mr. Frances testified on his own behalf, and he stated that he had been employed with the appellee and its predecessors since 1963. He gave an account of the paper scanner striking him, causing him to twist to the floor in an awkward motion to avoid being seriously injured. Although he was in pain, he continued to work until mid-November when he missed two days of work because his condition became intolerable. He first sought medical treatment on December 2, 1996, from Dr. Clyde Paulk. Dr. Paulk referred him to Dr. Robert Dickins, who performed an MRI and diagnosed a possible herniation. Mr. Frances then underwent conservative treatment, including physical therapy, and continued to work his regular work schedule. However, when his back condition failed to improve, he underwent surgery on September 3, 1997, which forced him to remain off work until January 7, 1998.
The testimony revealed that a meeting was held between Mr. Frances and his supervisors in January 1997. The gist of the meeting was to assess his medical treatment plan. He had been paying for medical care through his health insurance, and was told that if he filed a workers’ compensation claim, it would probably be denied and that the insurance might stop paying. Apparently, it was suggested to Mr. Frances that he fill out some forms and see appellee’s doctors, but being confused as to the ramifications of all of this, he refused to sign the forms and continued treatment under the care of his own physicians. According to Mr. Frances’s supervisors, he performed his regular job duties through January 1997 without any apparent impairment. However, one of his supervisors acknowledged that, while he did not witness the incident with the paper machine, he became aware of it within a week of its occurrence.
For reversal, Mr. Frances submits that the Commission erred in failing to find that he sustained a compensable injury. He notes that his account of the accident was corroborated by two co-employees, who noticed him limping and complaining of pain thereafter. Mr. Frances also notes that the initial reports of both Drs. Paulk and Dickins reflect a work-related injury that occurred in the manner described by his testimony. Although he was able to continue working, his job mostly included standing but no heavy lifting. A herniation was diagnosed two-and-one-half months after the accident, and when conservative treatment failed, surgery became necessary. As to causation of the back condition, Dr. Dick-ins stated in a report:
The statement that I can make about this is that the mechanism of injury that he describes could produce a lumbar disc injury. The history given that he initially sustained back pain and then four weeks later recurrent back and leg pain could be consistent with an injury to the disc initially, subsequently followed by the development of a herniation of that disc.
Based on the uncontradicted evidence, Mr. Frances argues that the only reasonable conclusion to be made is that his back condition and resulting treatment were caused by the accident at work.
We hold that there is no substantial basis to support the Commission’s decision to deny compensability. In its opinion, the Commission acknowledged that an accident occurred on September 23, 1996, but concluded that it only resulted in minor abrasions not worthy of compensation. We disagree. Four witnesses testified that, shortly after the incident, Mr. Frances was limping and complaining of back pain, and there was nothing in the record to indicate that Mr. Frances had prior back problems or that his current problems were caused by anything other than the accident at work. Although credibility determinations are left to the Commission, it is not free to arbitrarily disregard any witness’s testimony. See Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988). Both doctors reported the accident consistent with that elicited by the testimony, and Dr. Dickins’s reports indicate gradual back problems resulting from the accident that eventually required surgery. While Mr. Frances continued to work after the accident, his job was light and it is apparent that he was trying to work through the pain.
In reaching its decision, the Commission relied in part on the fact that the December 6, 1996, report of Dr. Dickins references a work-related exacerbation on November 16, 1996, but that this incident was not accounted for by any of the other evidence presented. However, there was evidence that, at about that time in November, Mr. Frances missed two days of work due to back pain, and thus the reference in the medical report was not fatal to his claim.
The Commission also relied on the fact that, in January 1997, Mr. Frances refused to sign workers’ compensation forms or go to the insurance carrier’s doctor. However, in light of the testimony elicited about the January 1997 meeting, it is evident that he was understandably confused as to what his options were. Furthermore, his choice of physician has little to do with whether his back condition was caused by a work-related incident.
Finally, the Commission relied on Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1997), which provides that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Because Dr. Dickins’s opinion was that the accident as described by Mr. Frances could have caused the herniation and need for surgery, the Commission found that this requirement was not met. We disagree with this assessment.
As pointed out by the claimant in this case, a doctor will virtually never witness a compensable injury and must rely on the accounts given by their patients. This, however, does not necessarily preclude compensation. In Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), we held that this requirement was met when an ophthalmologist gave the opinion that the work-related incident was the kind of event capable of causing the injury suffered. The ophthalmologist stated, “[cjertainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present in [appellee].” Id. at 197, 966 S.W.2d at 913. The fact that a physician fails to use the magic words “reasonable medical certainty” does not, by itself, invalidate his medical opinion. See id. (citing Paulsen v. State, 541 N.W.2d 636 (Neb. 1996)). In the instant case, Dr. Dickens gave the opinion that the work-related accident was the kind of event that could cause the resulting back condition, and this was sufficient to satisfy the relevant statute.
For the foregoing reasons, we are compelled to reverse the Commission’s decision to deny compensability.
Reversed and remanded.
Hart, Rogers, and Roaf, JJ., agree.
Jennings and Stroud, JJ., dissent. | [
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JOHN F. Stroud, Jr., Judge.
Stephen McKenzie was arrested on November 5, 1997, and charged with the offense of aggravated robbery. He filed a pretrial motion to suppress evidence, alleging that his detention and questioning by police officers, and the resulting seizure of items from his person, was unconstitutional and prohibited by Arkansas Rules of Criminal Procedure. The trial court denied the motion after conducting a hearing. Mr. McKenzie subsequently was tried by a jury, found guilty, and sentenced to ten years in the Arkansas Department of Correction. On appeal he contends that the trial court erred 1) in denying his motion to suppress, and 2) in allowing certain testimony into evidence at trial over his hearsay objection. We find no error and affirm.
Denial oj the Motion to Suppress
Appellant claims on appeal, as he did below, that the money seized from his pocket should have been suppressed because the search exceeded the scope of a lawful protective frisk authorized by Terry v. Ohio, 392 U. S. 1, 30 (1968). The trial court ruled that the seizure exceeded the boundaries of Terry but found there to be little doubt that appellant would have been taken to the police station and that inevitably the money would have been discovered through a proper search. The State counters that the Terry argument is unavailing and need not be addressed because the police had reasonable cause to arrest him and to conduct a lawful search incident to arrest. We agree with the State.
We will affirm a trial court if it reaches the right result, but gives a different reason for doing so. Kimery v. State, 63 Ark. App. 52, 973 S.W.2d 836 (1998). Under Arkansas Rule of Criminal Procedure 4.1(a)(1), a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed a felony. Arkansas Rule of Criminal Procedure 12.1 states in subsections (a) and (d) that an officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused in order to protect the officer, the accused, or others; or to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense. A search incident to a lawful arrest is valid even if conducted before the arrest, provided that the arrest and search are substantially contemporaneous and that there was probable cause to arrest prior to the search. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).
Reasonable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. E.g., Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). Reasonable, or probable, cause for a warrandess arrest exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person to be arrested. Id. The reviewing court makes an independent determination of a trial court’s suppression ruling based on the totality of the circumstances, reversing only if the trial court’s ruling was clearly against the preponderance of the evidence. Id. In assessing the existence of reasonable cause, the appellate court’s review is liberal rather than strict. Id.
Testimony by officers of the Camden Police Department related the following sequence of events on the night appellant was arrested. Officer John Schofer was parked in his police car beside Sgt. Chris Wages’s car around 1:30 a.m. They were approached by Michael Bates and Michael Leatherwood, who reported they had just been robbed about two blocks away. They described the rob bers as two black males, one heavy-set and wearing a green jacket with dark pants, the other wearing white pants and a dark tee-shirt. The victims said that they had given the men a ride after being flagged down at a stoplight on Grinstead Street; that the robbery occurred after the men got out at Grinstead and Church Streets; that one of the men (later identified as appellant) pointed a revolver at Bates’s head and asked if he had money; and that Bates gave them a $100 bill, a $5 bill, and two $1 bills for a total of $107.
Schofer stayed with the victims to get more information. He broadcast the clothing descriptions and bill denominations, while Wages began looking for the suspects. At a vacant house a block from the site of the robbery, Wages observed two black men wearing clothes that fit the description given by the victims. Shortly thereafter, when Sgt. Demoyne Gray arrived to assist because a weapon was involved, the two were crossing Grinstead Street with companions. The officers stopped the men, advised them that they were possible suspects for aggravated robbery, and conducted a pat-down search. Gray found $107 in denominations of $100, $5, and two $ls on the suspect later identified as appellant. Appellant and another suspect were arrested and taken to the station for identification after officers determined that the denominations of the money taken from appellant were the same as those taken in the robbery.
Here, the police had reasonable cause to believe that appellant had committed a felony at the time he was first detained. The fact that appellant matched the description of one of the robbers, and the fact that he was seen within a block of the scene of the robbery within minutes of its commission provided Sgt. Gray and Sgt. Wages with reasonable cause to believe that appellant had committed the crime. Because the officers had reasonable cause to arrest appellant, they also had authority to search appellant’s person for evidence of the robbery, weapons, and contraband. As appellant was arrested within minutes of the search, the fact that the search preceded appellant’s arrest does not render the search invalid because the search and arrest were substantially contemporaneous and because there was probable cause to arrest prior to the search. Thus, we hold that the search was lawful as incident to arrest and that the motion to suppress was properly denied.
The Hearsay Objection
At trial, Gray testified that less than half an hour after stopping the suspects and transporting them to the police station, he and Wages went back to search for weapons in a vacant house on Union Street where individuals “had been observed on the porch.” Appellant objected to testimony as hearsay. The trial court overruled appellant’s hearsay objection, and Gray testified further that the house was about half a block from the reported location of the robbery, that he and Wages searched the house, that no one else was there, and that Wages found a loaded .22 caliber weapon, which he immediately showed to Gray.
Hearsay is defined by Ark. R. Evid. 801(c) as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” An out-of-court statement is not hearsay, however, if it is offered to show the basis of an officer’s actions. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). The Bragg decision included the following discussion of other cases where officers testified about information from other sources:
In Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994), . . . the officer testified to information he had received from an informant, who had wished to remain anonymous, concerning the identity of a robbery suspects truck, upon which he had relied in broadcasting a description to other police units. The officer testified further that his broadcast alerted another officer to the suspect truck, which, in turn, caused that second officer to inform a third officer to be on the lookout for the truck. This court held that because the first officer’s testimony was provided in order to show the basis for his actions, the trial court did not err in admitting the testimony.
Similarly, in Hamm v. State, 304 Ark. 214, 800 S.W.2d 711 (1990), the alleged hearsay testimony involved an officer’s receipt of information from other officers regarding the description of an automobile. This court upheld the admission of the officer’s testimony, as it was merely offered to show that the officer acted on the description of the car given to him by the other officers.
In Johnson v. State, 313 Ark. 308, 854 S.W.2d 336 (1993), the defense made a hearsay objection when the police officer testified concerning information received from a citizen. This court found no error since the officer’s testimony was not offered for the truth of the citizen’s statement, but, instead, was offered to show what information the police acted upon.
328 Ark. at 623-24, 946 S.W.2d at 660.
In the present case, appellant contends that the trial court erred in permitting Sgt. Gray to testify at trial that appellant had been observed on the porch of the vacant house. Appellant asserts that Gray’s testimony was hearsay because he was not the person who had actually seen appellant there. His argument fails. In line with the cases above, we hold that Gray’s testimony that appellant had been seen on the porch of the vacant house was not hearsay because it was offered not for its truth, but to show why the officer and Wages returned to the house and searched after appellant’s arrest.
Affirmed.
Robbins, C.J., and Roaf, J., agree. | [
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Andree Layton Roaf, Judge.
Kevin Mayberry appeals an order from the Conway County Chancery Court dismissing his petition for a writ of habeas corpus based upon a finding that he failed to prove that he stood in the position of a parent to seven-year-old James Walter Flowers (James). Mayberry had filed the petition to gain physical custody of the child, who was then residing with appellee Dorothy Flowers, mother of the child’s birth father. On appeal, Mayberry argues that the trial court erred in finding that he failed to meet his burden. We reverse .
James was born on August 28, 1991, to Janas Renee Flowers (Renee) and Michael Dewayne Flowers (Michael). Renee and Michael subsequently divorced on October 9, 1992, and Renee was awarded custody of James. On November 8, 1993, Renee married Mayberry. Renee brought two children to the marriage, John and James, and three children were subsequently born of the union. Mayberry adopted John, and Mayberry and Renee filed a joint petition to adopt James on June 14, 1996. The petition included Renee’s consent for adoption, which recited that her right to withdraw her consent expired ten days from the time she executed the document. An attorney ad litem appointed to represent James’s birth father, Michael, stated in her report, filed for record on September 24, 1996, that she mailed a copy of the adoption petition by certified mail to Michael at the last known address, and the letter was returned unclaimed. Notice to Michael was then made by publication of a warning order in the Petit Jean Country Headlight on February 19 and 26 of 1997.
An order, styled Temporary Order of Adoption, was filed for record on June 16, 1997. The order recited that “from this date the child shall be the child of Kevin Mayberry and Renee Mayberry, and the child’s name shall be James Walter Mayberry, and the substitute birth certificate shall show the name of the adoptive parents.”
Renee filed a divorce petition on November 1, 1997, alleging general indignities. Mayberry counterclaimed, alleging adultery. On December 3, 1997, Renee moved to dismiss the adoption petition, citing marital difficulties and an imminent divorce as the grounds. The motion was granted by the Conway County Probate Court on February 13, 1998, nearly eight months after the adoption order was entered.
Meanwhile, on January 8, 1998, a temporary order was entered in the divorce proceeding. It vested the parties with joint custody of the five children, including James, but awarded primary physical custody to Renee. Renee, however, died on April 28, 1998. Apparendy Michael reappeared and took custody ofjames for a brief time, then turned the child over to his mother, appellee Dorothy Flowers.
On December 14, 1998, Mayberry petitioned for a writ of habeas corpus in Conway County Chancery Court. In his petition, he alleged that he was the adoptive father ofjames by virtue of the June 16, 1997, Temporary Order of Adoption. At a hearing on the motion, Mayberry’s attorney explained that after the dismissal of the adoption petition, Mayberry thought that his parental rights to James no longer existed, but after Renee died, he took James into his home and sought to obtain a guardianship. When he filed a guardianship petition, Michael was made a party. After a hearing in which Mayberry argued that the order dismissing the adoption petition was void, the trial court denied Mayberry’s petition.
On appeal, Mayberry argues that although the adoption order was styled “Temporary Order of Adoption,” in reality it was a final decree because no subsequent hearing was required by its terms. Further, because the order purporting to dismiss the adoption petition was entered more than ninety days after the “Temporary Order of Adoption” was entered, the dismissal decree was void because the trial court lacked jurisdiction to enter the order. We agree.
Once an interlocutory decree of adoption is entered, it is to be construed as a final decree if no subsequent hearing is required under the terms of that decree. McClusky v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983); In re Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982). Further, after entry of a temporary decree of adoption, consent may only be withdrawn if there was a showing of fraud, duress, or intimidation. Ark. Code Ann. § 9-9-209 (a) (Repl. 1998); Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994); In re Adoption of Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).
Here, although the decree was styled “Temporary Order of Adoption,” no further action by the probate court was contemplated by the order. Accordingly, the adoption was final. Further, even if we were to find that the adoption order was a temporary order, Renee’s motion to dismiss the adoption petition contains no allegation of fraud, duress, or intimidation. We hold that the probate court’s dismissal of the adoption petition more than ninety days after the entry of the “Temporary Order of Adoption” was void because, pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, the trial court lost jurisdiction to do so. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); State Office of Child Support Enforcement v. Offutt, 61 Ark. App. 207, 966 S.W.2d 275 (1998); see Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994).
Although the appellee, Dorothy Flowers, argues that May-berry’s failure to appeal from the dismissal order or object to its entry within the time specified by Ark. R. Civ. P. 60 bars this court from considering the matter on appeal, this argument is unpersua sive. It is not necessary to appeal from a void order because it never became effective, and a void order is subject to collateral attack. Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984); see also Price v. Price, 337 Ark. 372, 990 S.W.2d 514 (1999)(per curiam); West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993). We are not unmindful of the fact that where a probate court has jurisdiction, its judgment, although erroneous, is conclusive, so long as it is not reversed, and cannot be attacked collaterally. Wilson v. Wilson, 327 Ark. 386, 939 S.W.2d 287 (1997); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990). However, it is precisely because the probate court acted without authority to set aside the adoption decree that the chancery court was vested with the authority to act in this case. Cf. Wilson v. Wilson, supra.
We are also not unmindful of the fact that in In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997), a case involving a challenge to an adoption decree, the supreme court stated that because adoptions are special proceedings, the rules of civil procedure do not apply to adoption cases. However, we interpret this statement to be dicta in that the issue in Martindale was whether Rule 41(a) of the Arkansas Rules of Civil Procedure, pertaining to the right to non-suit and refile a case, was applicable to adoption proceedings. The supreme court applied Rule 81(a) of the Arkansas Rules of Civil Procedure, which provides in pertinent part that the rules of civil procedure apply to probate court proceedings “except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply,” and held that the one-year limitation period specified by Ark. Code Ann. § 9-9-216(b)(Repl. 1998) supplants Rule 41(a) of the Arkansas Rules of Civil Procedure. We note as well that only three years before it handed down Martindale, in Summers v. Griffith, supra, the supreme court invoked both Rule 60 of the Arkansas Rules of Civil Procedure and Ark. Code Ann. § 9-9-216(b) to affirm a probate court’s rejection of a birth father’s attempt to overturn an adoption.
Consistent with the methodology prescribed by the supreme court in Summers v. Griffith, supra, and Rule 81(a) of the Arkansas Rules of Civil Procedure, we have reviewed the applicable statutory provisions governing adoption proceedings, and we have found no procedural rule that conflicts with the ninety-day jurisdictional limitation on a trial court’s ability to set aside an order that is imposed by Rule 60(b). As noted above, this was a stepchild adop tion, so the six-month residency requirement set forth by Ark. Code Ann. § 9-9-213 (Repl. 1998) is not applicable. Similarly inapplicable is the provision in Ark. Code Ann. § 9-9-214(c) (Repl. 1998), which allows an interlocutory decree to become final by its own terms six months to a year after entry of the temporary order, because we have already determined that the order in the instant case was a final decree. Finally, we interpret Ark. Code Ann. § 9-9-216(b) (B.epl. 1998), which states:
(b) Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period,
to provide a maximum one-year time limit after which any action to set aside an adoption order is barred. This section does not affect the ninety-day limit set forth in Rule 60(b), upon which we rely, and would only serve to limit the time in which a probate court could act to set aside an order pursuant to Rule 60(c). Because Renee’s stated grounds for dismissing the adoption petition, allegations of marital difficulties and impending divorce, do not constitute any of the grounds enumerated in Rule 60(c) for setting aside the adoption decree after ninety days, Rule 60(c) could not and did not provide a basis for the probate court’s action.
Because the dismissal order was void, we further hold that the trial court was clearly erroneous in failing to find that Mayberry proved that he stood in the position of a parent to James Walter Flowers (James). We therefore reverse and remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Bird and Crabtree, JJ., agree.
We attempted to certify this case to the supreme court as a question of first impression and perceived inconsistencies in decisions of the supreme court; however, certification was denied. | [
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ROBIN F. WYNNE, Associate Justice
1 Randi Silkman, as administrator of the estate of Vera Kolesar, deceased, and on behalf of the wrongful-death beneficiaries of Vera Kolesar, has appealed from a grant of summary judgment by the Saline County Circuit Court in favor of appellees, Evangelical- Lutheran Good Samaritan Society; Evangelical Lutheran Good Samaritan Society d/b/a Good |2Samaritan Campus Hot Springs; ■ Good Samaritan Society Insurance, Ltd.; Corrine White, in her capacity as administrator of Good Samaritan Society-Hot Springs Village; and John Does I-V. The circuit court, in granting the motion, found that the' first properly filed complaint in this case had been filed prior to the complaint at issue and had been removed to federal court. . The circuit court also dismissed the complaint under the doctrine of forum non conve-niens. We previously decided an appeal in this same case in Evangelical Lutheran Good Samaritan Society v. Kolesar, 2014 Ark. 279, 2014 WL 2814816. As this is a second, or subsequent, appeal filed with this court, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(7) (2015). We affirm the order of the circuit court.
On December 2, 2010, Robert Kolesar, Sr., Vera Kolesar’s husband, filed a medical-malpractice action against appellees as attorney-in-fact for Mrs. Kolesar. The case was removed .to federal court and subsequently remanded to state court. In May 2011, appellees filed a motion to compel arbitration and for dismissal. That motipn was denied by the circuit court, and the denial was affirmed by this court in our earlier decision, which was issued in 2014.
On June 7, 2011, appellant filed an amended and substituted complaint that added an insurance company as a defendant. During a hearing on the motion to compel arbitration on November 3, 2011, Mr. Kolesar testified that he did not have a "power of attorney over Mrs. Kolesar when the complaint was filed in December 2010. Appellees made an oral motion Isduring the hearing to withdraw the complaint on the ground that Mr. Kolesar did not have a valid power of attorney when the 2010 complaint was filed. Appellant filed an amendment to the complaint on November 7, 2011, that had attached to it a power of attorney over Vera Kolesar in favor of Robert Kolesar, Jr. Appellant withdrew, that power of attorney and attached one executed by Mrs. Kolesar in favor of Mr.- Kolesar, Sr., to an “Amendment to Complaint” filed on November 29, 2011, that incorporated the “original complaint” by reference. Prior to this, on November 21, 2011, appellant filed a new complaint essentially identical to the amended and substituted complaint in the Saline County Circuit Court. That complaint was subsequently removed to federal court, and the federal ’court stayed that action in December 2012 pending the outcome of the motion for summary judgment at- issue here.
Appellees filed a motion for summary judgment on December 29, 2011, in which they argued that Mr. Kolesar lacked standing to sue, and the complaint should be dismissed as a matter of law. In the response to the motion, appellant alleged that the May 19, 2011 power of attorney ahd the November 29, 2011 amendment to the complaint should be considered “ratification, joinder, or substitution” under Arkansas Rule of Civil Procedure 17(a), At the |4May 18, 2012 hearing on the motion for summary judgment, appellees argued additionally that the complaint should be dismissed under the doctrine oí forum, non conveniens. The circuit court entered an order on November -17, 2014, in which it found that the November 21, 2011 complaint was the first validly filed action in this case, found that the doctrine of forum non conveniens - supported granting the motion, granted the motion, and dismissed the complaint without prejudice. This appeal followed.
The law-is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. A trial court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Id. The burden» of proof shifts to the opposing party once the moving party establishes a prima facie entitlement-to summary judgment; the opposing party must demonstrate the existence of a material issue of fact. Id. After reviewing the evidence, the trial court should deny summary judgment if, under the evidence, reasonable minds could reach different conclusions from the same undisputed facts. Id.
Appellant’s first argument on- appeal is that the June 2011 complaint or the November 7, 2011 amendment constitute the first-filed action in this case and, as both were filed prior to the November 21, 2011 complaint,, the trial court, erred in finding that the November 21, 2011 complaint was the first validly filed action. However, appellant never raised this argument, before the trial court.' It is axiomatic that this court will not consider arguments raised for the first time on appeal. Brown v. Lee, 2012 Ark. 417, at 7, 424 S.W.3d 817, 821. Before the trial court, appellant argued that the-November 29, 2011 complaint, combined with the May 19, 2011 power of attorney, served to satisfy Arkansas Rule of Civil Procedure 17(a), thereby making the December 2010 complaint a validly filed action. Not once did appellant argue,- as she does on appeal, that the first validly filed'action was either the June 2011 amended and substituted complaint or the November 7,2011 amendment to the complaint. Because of this, the argument will not be considered by this court on appeal.
Appellant’s next argument is that the trial, court erred by dismissing the complaint under the doctrine of forum non conveniens. Pursuant to Arkansas Code Annotated section 16-4-101(D) (Repl. 2010), “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.” The application of forum non conveniens, lies within the sound discretion of .the trial court. See Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). Only if this discretion is abused will the reviewing court reverse. Id.
We hold that the trial court did not abuse its discretion jn this case by electing to dismiss the complaint under the doc trine of forum non conveniens. A trial court commits an abuse of discretion when it improvidently exercises its discretion, for example, when discretion is exercised thoughtlessly and without due consideration. Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008). Here, the trial court weighed the interests of the parties, as well as the procedural posture of the complaint, and concluded that it was best for the complaint currently in federal court to proceed. The trial court did not exercise its discretion | fithoughtlessly or without due consideration. -
Affirmed.
. Mrs. Kolesar died on May 2, 2014. Mrs. Silkman successfully moved to be substituted as the plaintiff in the suit.
. Arkansas Rule of Civil Procedure 17(a) (2015) states:
Every action shall be prosecuted in the name of .the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party-for whose benefit the action is brought. No action shall be dismissed- on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, -or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. | [
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KENNETH S. HIXSON, Judge
| {Appellant John David Ross was convicted by a jury in Garland County of sixteen counts of possessing or viewing matter dépicting sexually explicit conduct involving' a child, one count of permitting abuse of a minor, and one count of bestiality. The charges arose Lfrom Ross’s possessing or viewing multiple child-pornography images and videos located on Ross’s laptop computer and cellular telephone; Ross’s permitting his girlfriend to sexually abuse his fourteen-year-old son; and Ross’s participating with his girlfriend in her acts of bestiality with his son’s dog. Ross was sentenced to 180 years in prison. Appellant challenges the sufficiency of the evidence supporting the convictions, and he challenges the trial court’s evidentiary ruling that excluded hearsay statements from Ross’s girlfriend, Amanda Hartle. We hold that appellant failed to preserve his challenge to the sufficiency of the evidence for appellate review, and we affirm the trial court’s evidentiary ruling because appellant failed to demonstrate, an abuse of the trial court’s discretion. We- therefore affirm appellant’s convictions.
In a jury trial, a motion for directed verdict is a challenge to the sufficiency of the evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Arkansas Rule of Criminal Procedure 33.1 outlines the requirements of a motion for directed verdict at a jury trial:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence, offered by the prosecution and at the close of all of the evidence. A, motion for directed verdict shall state the specific grounds therefor.
(c)'The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the évidence to support a verdict or judgment. A motion for directed verdict ‘or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the- evidence is insufficient does not- preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a- previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason', a motion or a renewed motion at the close of all of the evidence for directed verdict |3or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on. the question of the sufficiency of the evidence.
The plain language of Rule 33.1 requires that a motion for directed verdict be renewed at the close of all the evidence, and failure to do so operates as a waiver of any question pertaining to the sufficiency of the evidence to support the guilty verdicts. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55; Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. This renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed against a defendant. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005). We interpret Rule. 33.1 strictly. Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787.
Appellant moved for directed verdict — albeit very generally — at the close of the State’s case." The trial court denied the motion, the defense presented its case, and then the defense rested. There was no renewal of the motion for directed verdict. Appellant’s failure to renew the motion for directed verdict at the close of the evidence constituted a waiver of any sufficiency-of-the-evidence issue on appeal. See Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Appellant’s other argument on appeal is that the trial court abused its discretion in sustaining, the State’s hearsay objection and preventing the defense from using a notarized letter from appellant’s girlfriend, Amanda Hartle. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court. Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005). We will not reverse a- trial court’s ruling on a hearsay question unless the appellant demonstrates that the trial court abused its discretion. | Jd. We hold that appellant has failed to demonstrate an abuse of discretion on the trial court’s part.
An amplification of the facts is necessary to explain our decision. Hartle was not available to appear as a witness. She was facing a separate trial on criminal charges similar to appellant’s, and she invoked her Fifth Amendment right against self-incrimination.
The State put on evidence that Hartle lived with appellant at his Hot Springs home. Appellant testified to Hartle’s proclivity for extreme, and sometimes criminal, sexual behaviors. He stated that she was an alcoholic and attracted to perverse behaviors. Appellant gave a statement to an investigator in which he admitted that there was child-pornography on his home computer, that he and Hartle looked at it, and that they were aroused by it. Appellant testified that Hartle alone was responsible for downloading the child pornography onto his computer and cell phone against his wishes, for routinely parading around the house without a shirt on, for performing sexual acts on his young teenage son, and for committing acts of bestiality that were photographed with appellant’s cell'phone. Appellant admitted that he had not reported Hartle’s sexual abuse of his son to anyone; he wanted to protect his girlfriend. He further admitted that he assisted' Hartle with .one episode of bestiality but that he felt dirty for doing, it.
April Hardy Raines (Ross’s and Hartle’s friend) testified for the defense, blaming Hartle for “all of this.” Raines-testified that Hartle often made her uncomfortable by walking around |sthe house in states of undress and by showing her child pornography on the computer. Raines said that she had “physical evidence” of Hartle downloading child pornography by virtue of a “written letter.” This drew a State’s objection. Defense counsel stated, “I know you’re gonna declare it inadmissible — we need to proffer it.”
In Hartle’s signed, notarized, hand-written statement, Hartle took responsibility for her role in these crimes, blamed herself, and tended to pull blame away from appellant. Appellant did proffer the evidence at the end of trial as Defendant’s Exhibit 1, arguing that the letter’s contents should fall within an exception to the hearsay rule under Arkansas Rules of Evidence 803(23), 804(b)(3), and 804(b)(5). The State responded that this was inadmissible hearsay, not falling within any hearsay exception because it was not trustworthy or exculpatory.
On appeal, appellant focuses on Rule 804(b)(3), the “statement against interest” exception, which provides that evidence from an unavailable declarant is not excluded by the hearsay rule if it is:
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject -him to civil or criminal liability or to render invalid a claim by a him against, another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be- true. A statement tending to expose the declar-ant. to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal cases made by a codefendant or other person implicating both himself and the accused, is not within this exception.
Appellant acknowledges that our supreme court has stated that the proponent must show (1) that the declarant..is unavailable, (2) that the statement at the time of making so far ^tended to subject him to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless he believed it to be true, and (3) that corroborating circumstances clearly indicate the trustworthiness of the statement. Winters v. State, 2013 Ark. 193, 427 S.W.3d 597; Williford v. State, 300 Ark. 151, 777 S.W.2d 839 (1989). Absent an abuse of discretion, we will not reverse a trial court’s ruling on the admissibility of a statement against interest. Winters, supra.
We hold that appellant has failed to show an abuse of discretion. The letter authored by Hartle implicates both her and appellant, and thus does not come within this hearsay exception. Where accomplices are involved, a statement against interest that does not entirely exculpate the defendant cannot fall within this exception. See Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227; Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). A review of the contents of Hartleys letter shows that Hartle claimed the following: that she had a drinking problem and would behave badly when intoxicated; that she had talked appellant into participating with her in acts of bestiality; that appellant had filmed her sexually abusing his son; and that she felt more responsible for all the criminal acts for which appellant was being tried. This did, not,,.however, exculpate appellant as an accomplice to these acts. An admission by one accomplice does not exculpate the other. Davis v. State, 2014 Ark. 17, 2014 WL 186011; Winters, supra; Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). The statements of accomplices “fail decidedly to meet the test of having corroborating circumstances that clearly indicate the trustworthiness of the statement.” Tillman v. State, 275 Ark. 275, 284, 630 S.W.2d 5, 10 (1982). The exception to the prohibition against hearsay simply does not apply here, and thus appellant fails to show that the trial court abused its-discretion.
Appellant’s convictions' are affirmed.
Abramson and Vaught, JJ., agree.
. Ross was charged with violating Arkansas Code Annotated section 5-27-602(a)(2) (Repl. 2013) by, either alone or with another person, knowingly possessing or viewing images that depict a child engaging in sexually explicit conduct.
. Ross was charged with the Class B felony of permitting abuse of a minor because the abuse was alleged to be sexual intercourse or deviate sexual activity. Appellant was accused of being a parent who "recklessly fails to take action to prevent abuse of a minor.” Arkansas Code Annotated section 5-27-221(a) (Repl. 2013). It is a defense to this crime if the parent "takes immediate steps to- end the abuse of the minor, including prompt notification of a medical or law enforcement authority, upon first knowing or having 'good reason to know that abuse has occurred.” Id. at subsection (b)..
.Ross was charged with violating Arkansas Code Annotated section 5-14-122(b) (Repl. 2013) as an accomplice to another person who “performs or submits to any act of sexual gratification with an animal involving his or her or the animal’s sex organs and the mouth, anus, penis, or vagina of the other.” | [
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CLIFF HOOFMAN, Judge
[,Appellant Deshaun Scott appeals from his conviction for second-degree murder,' for which he was sentenced to forty-five years’ imprisonment. He was also found guilty of using a- firearm during the commission of-the offense and received a sentence enhancement of fifteen years, to be served consecutively. On appeal, Scott argues that the circuit court erred in permitting the State, to elicit testimony about a certain statement he had made prior to the murder. We affirm.
On December 31, ■ 2012, Scott was charged with1 first-degree murder in con-, nection with-the-November 10, 2012 death of his wife, Lacrisa Renee Foot. He was also charged with using a firearm during the commission of the offense. The jury trial was held on July 15-18, 2014.
At trial, Little Rock Police Officer Alicia Smith testified that she was off duty and that 12she was working security at Elevations Nightclub in the early morning hours of November 10, 2012. Scott and Foot had been asked to leave the club after an altercation in which Scott threw a drink on Foot. As Smith approached them to escort them out of the club, she stated that Scott was visibly upset and that she overheard him say, “Fuck the police and her.” After Scott and Foot got into their vehicle and. started to drive away, Smith witnessed Foot open the passenger door and roll out of the car while it was still moving. She then saw Foot get up, walk around to the driver’s side of the vehicle, and try to punch Scott. Smith heard Foot exclaim, “I can’t believe you punched me in the face.” Officer Hubert Bryant, who.was also off -duty and .working security at the club that night, testified that he also witnessed the argument in the parking lot. He stated that Scott was insisting on Foot getting back into the car with him, but he informed Scott that he could not force her to go with him and told him to leave the premises. The last time Bryant saw Foot, she was talking on her cell phone and walking toward the parking lot at the bottom of the hill. He testified that he assumed she was going to meet back up with Scott based on what he overheard from her phone conversation.
Approximately one hour later, Foot’s body was found lying face down in the street at the intersection of 39th Street and Katherine Street. She had a single gunshot wound to her head near her left ear, as well as blunt force trauma to the back of her skull. Although Scott initially denied knowing anything about Foot’s death, he later admitted to police that he had returned to the nightclub to get Foot, that they were then arguing in the car, that he grabbed her gun in the passenger side console in order to keep it from her, and that she slapped the gun, causing it to accidentally shoot her in the head. Once he realized that Foot had been | ¡¡shot, Scott stated that he panicked, stopped the car, and pushed her out into the street. He then threw the gun in the Arkansas River.
Blood splatter was found on the exterior of the passenger side of the vehicle, as well as a piece of what appeared to be brain matter or body tissue. There was also a small amount of blood splatter found on the inside of the front passenger window and the door frame. The medical examiner, Dr. Frank Peretti, testified that he would have expected to see more blood on the interior of the car if Foot was shot while inside it. He further stated that Foot suffered two distinct injuries, the gunshot and the blunt force trauma to her head, and he indicated that the body had to have been moved because her skull fracture could not have been caused by her falling face down onto the pavement. Per-etti also indicated that there was no evidence that Foot was shot from close range.
At the conclusion of the trial, the jury found Scott guilty of second-degree murder and of using a firearm during the commission of the offense. He was sentenced to forty-five years’ imprisonment, plus a fifteen-year firearm enhancement, for a total of sixty years in the Arkansas Department of Correction. The judgment and commitment order was entered on September 16, 2014, and Scott filed a timely notice of appeal.
For his sole argument on appeal, Scott argues that the circuit court erred in permitting the State to elicit testimony from Officer Alicia Smith that he had said, “Fuck the police.” He contends that this statement was both irrelevant and more prejudicial than probative, and he requests that this court reverse and remand the case for a new trial.
Trial courts have wide discretion in their evidentiary rulings, and there must be an | ¿abuse of discretion, as well as a showing of prejudice, to justify reversal of that decision. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003). According to Arkansas Rule of Evidence 401 (2014), relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” All relevant evidence is admissible, except as otherwise provided by the rules. Ark. R. Evid. 402 (2014). Under Arkansas Rule of Evidence 403 (2014), evidence that is otherwise admissible 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.”
In his argument on appeal, Scott focuses only on the portion of his statement that said, “Fuck, the police.” However, the complete statement admitted through Smith’s testimony was actually, “Fuck the police and her.” The circuit court overruled Scott’s objection to this testimony, finding that it was admissible to show the course of conduct between Scott and Foot at the relevant point in time. The. court cautioned the State, however, against going “any further down that road.”
As Scott admits, the primary issue to.be decided by the jury at trial was his mental state at the time he shot Foot. We have held that 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. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686; Berks v. State, 2013 Ark. App. 203, 427 S.W.3d 98. Under the circumstances in this ease, Smith’s testimony that Scott was 1 ^visibly upset after being kicked out of the club following an altercation with Foot and that she then overheard him say, “Fuck the police and her,” was relevant to show his state of mind shortly before the shooting.
Scott also contends that the evidence was more prejudicial than probative because the probative value of his statement “Fuck the police” was “nil,”, while the testimony had “the potential to inflame the jury’s passions, elicit anger, and create a jury hostile to Scott, who not only had his life being decided by the jury but -also testified.” Again, Scott erroneously focuses on only a portion of the entire statement -that was admitted. The statement as a whole was probative of Scott’s state of mind during the time period shortly before the shooting, and the circuit court did not abuse its discretion by finding that the statement was not more prejudicial than probative based on the other evidence presented in ■ this ease. In addition to the evidence that Scott threw a drink on Foot at the nightclub and then allegedly hit her in the face when she initially got into his car after they were forced ■ to leave the .club, the jury also heard Scott’s testimony at trial that he had eight prior felony convictions, including-terroristic threatening and aggravated assault. He further testified that he was on probation at the time of the offense in this case. Given this evidence, Scott was not unfairly prejudiced by Smith’s testimony as to his statement while leaving the club, and the circuit court did not abuse its discretion in admitting the statement. We therefore affirm.
Affirmed.
Virden and Kinard, JJ., agree. . | [
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PHILLIP T. WHITEAEER, Judge
| ] This appeal arises out of divorce proceedings following the eleven-year marriage of Stephanie Quinn (Quinn) Branch and James (Jimmy) Branch. On appeal, we are charged with determining whether the circuit court erred by (1) finding that the parties’ premarital agreement was unenforceable pursuant to the Arkansas Premarital Agreement Act; (2) finding that Jimmy breached the premarital agreement rendering it unenforceable; and (3) equally dividing the equity in a house acquired during the parties’ marriage. We affirm in part and reverse and remand in part.
I.Background
Quinn and Jimmy were married in July 2003. Prior to the marriage, the parties executed a premarital agreement. In January 2014, Quinn filed a complaint for divorce. In 12her complaint, Quinn sought to have the premarital agreement declared void pursuant to Arkansas Code Annotated section 9-ll-406(a)(2) (Repl. 2015). Jimmy filed an answer to Quinn’s complaint, denying that the premarital agreement was void; he also counterclaimed for divorce.
The circuit court held a final divorce hearing in September 2014. In October 2014, the circuit court issued a letter opinion, and later in November 2014, a decree of divorce was entered, memorializing the circuit court’s decision. Thereafter, Jimmy appealed to this court. This court dismissed that appeal without prejudice because of a deficient Rule 54(b) certificate. See Branch, supra. Following this court’s dismissal, the case returned to the Saline County Circuit Court wherein the court issued an amended divorce decree that included a Rule 54(b) certificate complying with our rules. Jimmy timely appealed from the amended decree.
On appeal, Jimmy raises three general arguments in support of reversal. He contends that (1) the circuit court improperly invalidated the parties’ premarital agreement pursuant to Arkansas Code Annotated section 9-ll-406(a)(2); (2) the circuit court erred in finding that he breached the premarital agreement rendering it unenforceable; and (3) the circuit court improperly distributed his premarital property, specifically, the house acquired during the marriage that was solely in his name.
II.Standard of Review
Our standard of review is well settled. We try domestic relations cases de novo on appeal, and will not reverse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). 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. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000).
III.Whether the Circuit Court Improperly Invalidated the Parties’ Agreement
Quinn and Jimmy’s premarital agreement is governed by the Arkansas Premarital Agreement Act. See Ark. Code Ann. § 9-11-401 et seq. The Arkansas Premarital Agreement Act places the burden on the party contesting the agreement to prove its invalidity. Ark. Code Ann. § 9-ll-406(a). Here, Quinn bore that burden. Under the Arkansas Premarital Agreement Act, Quinn could invalidate the agreement by proving that it was not executed voluntarily. Ark. Code Ann. § 9-11-406(a)(1). This provision is not applicable to this appeal because Quinn does not contest the voluntariness of the execution.
Quinn sought to invalidate the premarital agreement pursuant to the second statutory provision, Arkansas Code Annotated section 9-ll-406(a)(2). Arkansas Code An notated section 9-ll-406(a)(2) provides that
“[a] premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before the execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
[4(iii) did not have, or reasonably could not have had, an adequate knowledge of the property of financial obligations of the other party.
To prevail under this provision, it was Quinn’s burden to establish four things: (1) that the agreement is unconscionable; (2) that, prior to the execution of the premarital agreement, she was not provided a fair and reasonable disclosure of the property or financial obligations of Jimmy; (3) that, prior to the execution of the premarital agreement, she did not voluntarily and expressly waive, after consulting with legal counsel, in writing, any right to disclosure of Jimmy’s property or financial obligations beyond the disclosures provided; and (4) that, prior to the execution of the premarital agreement, she did not have, or reasonably could not have had, an adequate knowledge of Jimmy’s property or financial obligations. Ark. Code Ann. § 9-ll-406(a)(2). The circuit court found that Quinn proved each of these four elements and declared the parties’ premarital agreement unenforceable.
Jimmy contends that the court erred in finding the agreement unenforceable because the court failed to consider all statutory requirements of Arkansas Code Annotated section 9-ll-406(a)(2). Whether the court correctly applied and interpreted the Act is a question of law, which this court reviews de novo. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427. Jimmy also argues that the circuit court’s invalidation of the premarital agreement should be reversed because Quinn failed to prove all of the four required elements of Arkansas Code Annotated section 9—11—406(a)(2). Specifically, Jimmy argues that Quinn failed to prove that (1) the agreement was unconscionable; (2) she did not receive a fair and reasonable disclosure of Jimmy’s property or financial obligations; and (3) she did not have, or reasonably could not have had, an adequate knowledge of Jimmy’s property or financial ^obligations. A conclusion that the circuit court erred in finding that any one of the requirements of Arkansas Code Annotated section 9-11-406(a)(2) was met requires reversal.
As a preliminary matter, Jimmy argues that the court failed to consider all statutory requirements of Arkansas Code Annotated section 9-ll-406(a)(2). In support of his argument, Jimmy references the circuit court’s letter opinion. Admittedly, the court mentioned only two of the four requirements of the Act—unconscion-ability and voluntary waiver—in the letter opinion. Nevertheless, the amended divorce decree provides that the circuit court considered all statutory requirements and found that Quinn proved each of them. Because the divorce decree provides that the circuit court considered all statutory requirements, we easily dispose of this argument, concluding that the circuit court did not err as a matter of law.
We now turn our attention to whether Quinn proved all four required elements of Arkansas Code Annotated section 9-ll-406(a)(2). We begin our analysis by focusing on whether Quinn proved that she did not receive a fair and reasonable disclosure of Jimmy’s assets.
At the final divorce hearing, Jimmy produced Exhibits A and B to the premarital agreement. Exhibit A provided that Jimmy had a net worth of approximately $1 million. Exhibit B listed many of Jimmy’s items of personal and real property, as well as his various investment accounts; it did not, however, specifically identify the amount of money in each account. Quinn admitted that she had received these disclosures. The only evidence regarding Jimmy’s disclosures to Quinn comes from Exhibits A and B to the parties’ | (¡premarital agreement. Quinn failed to offer any evidence tending to show that she did not receive a fair and reasonable disclosure.
In the divorce decree, the circuit court found that Jimmy had “wholly failed to disclose his assets” and that, generally, his testimony was “extremely wanting.” Circuit courts are charged with making factual findings and assessing credibility. This court gives due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given to their testimony. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Nevertheless, this court has the authority to reverse those findings when left with a firm conviction that the circuit court made a mistake. Norman, supra.
Irrespective of the circuit court’s credibility determination, we conclude that it clearly erred. A fair and reasonable disclosure of assets is not necessarily a full and complete disclosure. A disclosure “need not be a full or exact disclosure, but rather may consist of an approximation of net worth.” 3 A.L.R. 5th 394 § 5. Arkansas case law confirms this as our guide. This court has upheld a premarital agreement where a husband made a generalized disclosure of his assets but did not specify the precise sources and amounts of his income. See Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). Exhibits A and B constitute a fair and reasonable disclosure of Jimmy’s assets. Because we conclude that the circuit court erred by finding that Quinn did not receive a fair and reasonable disclosure of Jimmy’s assets, we need not consider the remaining statutory requirements. We reverse the circuit court’s order declaring the parties’ premarital agreement invalid and remand the issue to the circuit court for entry of an order consistent with this opinion.
17IV. Whether Jimmy Materially Breached the Premarital Agreement
The circuit court alternatively concluded that the parties’ premarital agreement was unenforceable because Jimmy breached the agreement, and Jimmy contends that this ruling was also erroneous. The relevant provision in the premarital agreement reads as follows:
The First Party agrees to contribute to and maintain a separate retirement account for Second Party. First Party will contribute to an IRA, savings, or investment account for each year of marriage. This amount will not exceed or be under $5,000 per year of marriage. This contribution will cease should the marriage fail. This contribution may cease should First Party become unemployed or retire; but only will cease if First Party’s net worth falls below One Million Dollars. Second Party acknowledges that First Party’s net worth is within ten percent (10%), plus or minus, of One Million Dollars at the present time.
The uncontroverted evidence is that Jimmy opened a retirement account for Quinn but that he did not contribute $5,000 annually during their marriage. Quinn presented evidence that had Jimmy contributed to the account annually, she would be entitled to $74,585.65. Jimmy agreed to pay that amount into the account if the premarital agreement was enforced.
Jimmy argues that the court erred in determining his failure to make annual contributions to the account constituted a breach of contract. We disagree. We conclude that this contractual provision required Jimmy to make annual $5,000 contributions to an account on Quinn’s behalf. Jimmy’s failure to make these annual contributions constituted a breach of the agreement.
Thus, we must consider whether Jimmy’s breach was material. Where there is a material breach of contract, the injured party is entitled to rescission of the contract. Economy Swimming Pool Co. v. Freeling, 236 Ark. 888, 891, 370 S.W.2d 438, 440 (1963). A material breach is a failure to perform an essential term or condition that substantially defeats the purpose of the contract for the other party. Spann v. Lovett & Co., 2012 Ark. App. 107, at 21, 3 9 S.W.3d 77, 93. An influential circumstance in determining whether a breach is material is the extent to which the injured party will obtain the substantial benefit that he reasonably anticipated. Id.
Jimmy argues that the purported breach cannot be material because it had no adverse effect on Quinn. We agree. Jimmy and Quinn stipulated to the amount of money he owed Quinn pursuant to this provision. Because this stipulation allows Quinn to receive the benefit that she anticipated, we hold that Jimmy’s breach was not material and that rescission was an improper remedy. We reverse the circuit court’s order rescinding the premarital agreement and remand the issue to the circuit court so that it may issue a decree consistent with this opinion.
V. The Equal Division of the House
Jimmy argues that the circuit court erred when it equally divided the equity in a house acquired during the marriage. The evidence on this issue is that in November 2011, Jimmy sold his premarital home and deposited $235,000 in a joint checking account with right of survivorship that he maintained with Quinn. Four days later, he removed that $235,000 and used it as a down payment on a $440,000 house that was purchased solely in his name. Jimmy argues that nearly all other remaining payments were traceable to proceeds of sales of his other nonmarital properties. Again, any funds received from the sale of Jimmy’s nonmarital property were put into the parties’ joint account and later withdrawn to pay down the debt on the house. This joint account is the primary account used during the marriage, and both parties placed funds into that account.
iJn the final decree, the circuit court ordered the house sold and the proceeds divided equally. Jimmy argues that this was error for two reasons: (1) the court disposed of a nonmarital asset without providing a basis for the ruling, and (2) he was entitled to more than half of the equity because he used nonmarital funds to pay down the debt on the house.
First, Jimmy argues that the house was his nonmarital property and that the circuit court erred when it did not provide its reasoning for the division of the house. Arkansas Code Annotated section 9—12—315(a)(2) requires a court to identify the basis for the division of nonmarital property. This argument is without merit. Arkansas Code Annotated section 9-12- 315(b) defines marital property as “property acquired by either party during the marriage.” The house was clearly acquired during the parties’ marriage, and thus, it meets the definition of marital property. Therefore, we hold that the circuit court did not err by failing to identify a basis for its ruling.
Jimmy also contends that the circuit court erred when it equally divided the equity in the house. He insists that he should have been awarded the $235,000 he used as the down payment on the marital home and the payments he made toward the debt on the house that were traceable to the sales of his nonmarital property.
Our review is limited to whether the circuit court’s decision that the funds were marital is clearly erroneous. We cannot say that it is. Jimmy emphasizes that, even though all payments on the house originated from a joint marital bank account, the funds used to pay down the debt on the house can be traced to his nonmarital property. Our supreme court has considered the issue of tracing funds and held that “the fact that one spouse made contributions to certain property does not necessarily require that those contributions be 11 nrecognized in the property division upon divorce ... .We have no doubt that the tracing of funds ... might be inconsequential when considered at the dissolution of a marriage that had lasted for many years and had left the parties with decidedly unequal means for supporting themselves in the future.” Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). Here, the parties had been married for eleven years, and Quinn had not consistently worked during the marriage. Additionally, both parties contributed to the joint account that was utilized to pay down the debt on the mortgage. Accordingly, we conclude that the circuit court did not clearly err in its equal division of the house, and we affirm on this issue.
Affirmed in part; reversed and remanded in part.
Glover and Brown, JJ., agree.
. This case returns to our court after a previous dismissal without prejudice. See Branch v. Branch, 2015 Ark. App. 712, 479 S.W.3d 566. | [
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ROBERT J. GLADWIN, Judge
| jAppellant Chelsea Edgar appeals the October 26, 2016 order of the Franklin County Circuit Court terminating her parental rights to her minor children, A.E! and A.N. She argues that the trial court erred in granting the termination-of-parental-rights (TPR) petition because appel-lee Arkansas Department of Human Services (ADHS) failed to present sufficient evidence that TPR was in the children’s best interest. Appellant argues that, contrary to the subsequent findings by the trial court at the TPR hearing that she was unlikely and unwilling to comply with the requirements to have custody restored to her, she, in fact, had demonstrated throughout the case her willingness and ability to comply, and her children had been returned to her. We affirm.
I. Facts
Appellant was' the victim of domestic violence from her now deceased husband, Bruce Nichols. During a domestic-abuse incident that occurred on October 4, 2013, | ^appellant's then one-year-old minor child, A.E., received injuries when Nichols placed him on a window sill, and he fell through the window as Nichols fled the scene after appellant called the police. On October 4, 2013, ADHS interviewed appel lant, Nichols, and other parties, and put an emergency, seventy-two-hour hold on both A.E. and A.N, based upon threat of harm, cuts, welts, and bruises, as well as inadequate supervision.
ADHS filed a petition for emergency custody and dependency-neglect on October 9, 2013. The supporting affidavit sets forth the factual bases supporting the petition, including that appellant and Nichols had been drinking, had a car wreck, and when they got home, they got into a heated argument that escalated into domestic violence perpetrated by Nichols against appellant. Appellant revealed that while, being attacked she defended herself with two knives, and the one-year-old child, A.E., was in the abuser’s hands when she defended herself. Nichols acknowledged that the altercation had occurred, that he did have A.E. in his arms at some point in time, and that when appellant called law enforcement he placed the child in the window sill, let him fall into the room, and then fled.
The trial court entered an ex parte order for emergency custody on October 9, 2013, granting ADHS custody of the minor children. A probable-cause hearing was held on October 14, 2013, and an order was entered on October 23, 2013, with an amended probable-cause order being filed on October 25, 2013, wherein the trial court ordered custody of the children to be with ADHS. The parents received reasonable and supervised visitation contingent on having negative drug screens.
Appellant was ordered to comply with existing orders, submit to random drug testing as requested by ADHS, attend and complete parenting classes, attend counseling (individual and couple), submit to drug- and-alcohol assessments and complete recommendations, keep IrADHS advised of her address and phone number, attend domestic-violence classes, and obtain and maintain reliable transportation.
On November 6, 2013, an adjudication order was entered, continuing custody of the children with ADHS and finding that there was threat of harm, inadequate supervision, and' physical abuse (cuts, welts, and bruises). The goal was reunification. The children were placed in a provisional foster home with their maternal grandmother, Debbie Edgar, on December 17, 2013.
Several court reports were submitted and review hearings were held during the initial pendency of the case, and a review order was entered on April 23, 2014, wherein the trial court found that the return of custody to appellant was contrary to the welfare of the children and that continued custody in ADHS was in the best interest of, and necessary for the protection, of the children’s health and safety. The trial court noted that the parents had complied with the case plan in that they complied with random drug screenings, drug-and-alcohol assessments, and completed residential drug treatment. That order further ordered the parties to continue receiving services including attending and completing parenting classes, obtaining aiid maintaining stable and appropriate housing and gainful employment, attending counseling as recommended by a counselor or therapist, and attending and completing domestic-violence classes.
On July 15, 2014, a review order was filed of record in which the trial court again found that the return of custody to appellant was contrary to the welfare of the children and that continued custody in ADHS was in the best interest of, and necessary for the protection of, the children’s health and safety. The trial court noted that the parents had partially complied with the case plan in that they had completed parenting classes, attended do- mesticé ¿violence classes regularly, completed drug-and-alcohol assessments, and maintained stable housing, and that Nichols had maintained stable employment. On August 1, 2014, a court report was filed recommending the children be placed in the parents’ home for trial-home placement. In that report,'ADHS noted that the parties had completed residential treatment and had also followed up on referrals to other agencies; that visitation was occurring at- Debbie Edgar’s home on a weekly basis, and that visits were going very well.
A review order was entered on August 13, 2014, wherein the trial court determined that a trial-home placement would begin upon ADHS completing a walk-through of the home and noted that the parties had completed drug treatment, obtained housing and income, and complied with domestic-violence classes. The parents were ordered to continue to comply with previous trial court orders.
On September 25, 2014, a court report was filed recommending that custody be returned to the parents and that a protective-service case be opened. On October 15, 2014, a review order was entered finding that return to the custody of the parents was no longer contrary to the welfare and safety of the children and that placement of the children in the custody of the parents was in their best interest. Custody was returned to the parents, with the trial court also noting that the parents had partially complied with the case plan in that they had completed all domestic-violence classes and all other requirements except counseling, on which they were working.
On January 7, 2015, a court report was filed by ADHS recommending that the children remain in the home and the case be closed. This report also indicated that the parties were living in an appropriate home, had suitable transportation, and had income.
|fiOn January 22, 2015, a review order was entered leaving custody with the parents and finding that the parents had completed parenting and domestic-violence classes and were attending both individual and marriage counseling. The review order also indicates that upon receipt of the counselor’s recommendation and agreement of the parties, an agreed order might have been entered to close the case.
However, on March 9, 2015, a court report was filed by ADHS still recommending that the children remain in the home, but recommending that intensive family services 'be initiated after a caseworker observed and had concerns with parenting skills, the condition of the home, and family-role responsibilities.' A review order was entered on March 13, 2015, leaving custody with the parents and finding that the parents had partially complied with the case-plan in that they had complied with counseling, but noting that the mother had failed to maintain her home in a clean manner. On May 22, 2015, a court report was filed recommending the children remain in the home of the parents and that ADHS continue to work with the family. On May 27, 2015, a review order was entered continuing custody with the parents as being in the best interest and necessary for the protection of the children, with a case-plan goal for custody to remain with the parents, and with ADHS providing services • to achieve that goal. Appellant specifically was ordered to submit to (1) random drug screens as requested by ADHS, (2) attend and complete parenting classes, (3) obtain and maintain stable and appropriate housing, (4) attend counseling, (5) submit to a psychological evaluation and follow any Recommendations, (6) submit to intensive family services, and (7) submit to an éval- uation by a medical professional to reevaluate her epileptic medication.
IfiThe goal and case plan continued, and on October 21, 2015, a permanency-planning order was entered indicating that continuation of custody with the parents was in the best interest of, and necessary for the protection of, the children’s health and safety, and the case would continue the goal of support and services with case closure expected to occur within a time frame consistent with the children’s developmental needs. That review order further found that
the parents had complied with the case plan and that they had maintained a safe and appropriate home, started parenting classes, and continued ... therapy. The mother has not been reported driving again, and her father has stepped up to transport her and the children as needed. Mother has completed her psychological evaluation, which reported she has poor impulse control and low self-esteem. Mother needs to continue therapy to assist her in developing a healthy relationship and to build her self-esteem. The father has continued his employment as a diesel mechanic.
However, on January 5, 2016, a court report was filed indicating that, although the children were currently in the home with the parents and were doing well in school, appellant had tested positive for opiates, and the prescription she provided did not match the drugs for which she tested positive. There was an issue reported by appellant’s mother that appellant had not been paying the full amount of rent. Her mother had quit helping her, and appellant had no one to depend on to help her watch the. children until Nichols returned home from work. That report also noted appellant’s history of seizures and recommended the children be brought back into foster care.
On January 20, 2016, a review order was entered whereby the trial court exercised a hold on the children and returned them to ADHS custody, finding,.that hold to be in the best interest of, and necessary for the protection of, the children’s health and safety. The trial court noted appellant had tested positive for opiates, and there was an issue with the 17maternal grandmother as to the continued residence by appellant and the children in a home where appellant and Nichols were not paying their rent.
Although the trial court had previously found that appellant was in compliance and had restored custody to her, in the review order of January 2016, the trial court found that there were continuing environmental-neglect issues that had resurfaced, that the parents were put on “a short leash,” and that the trial court would not allow this case to linger much longer than the two years it had been in progress. The parents were given one last chance to correct the situation and prove that they could provide a safe, clean home and conduct themselves in a manner consistent with good parenting. The trial court also ordered that services to the family should include both parents taking new drug-and-alcohol assessments, following all recommendations, cleaning their home and keeping it clean, and allowing home visits. The trial court ordered the parents to submit to all random drug-screen requests and noted that all visitation would be supervised and would continue only on a clean drug test and the parties not appearing under the influence.
On April 6, 2016, ADHS filed a court report requesting the goal change to TPR indicating that the children had been doing well at the Franklin County Learning Center since back in ADHS custody and- that appellant had come to ADHS in March 2016 and advised that Nichols had started drinking again and that appellant wanted to tell ADHS before her mother did. On June 22, 2016, ADHS filed a court report requesting a goal change to TPR. In that report the history of the case was outlined including new indications that on January 15, 2016, an ADHS caseworker visited the home and noticed a big improvement in the house. The house was clean, and appellant was praised for having a clean home. But when the caseworker went into A.E,’s bedroom, she found’ that appellant I shad tied a side rail of a crib on top of A.E.’s playpen where A.E. sleeps. The caseworker indicated that she had told appellant time after time not to cage the child. On June 22, 2016, a CASA report was filed indicating that he did not have enough information to make any recommendations at the time but that the two children presented themselves well, showing appropriate social skills and the ability to interact with each other and with adults.
On June 30, 2016, a permanency-planning order was entered, which referenced the June 22, 2016 CASA report previously identified and further found that the father, Nichols, had relapsed, was arrested on alcohol charges on May 29, 2016, and was deceased. The trial court further found that the mother had barely complied with the case plan. The trial court recapped the history of the case, including the incidents that, notwithstanding such, the children had been returned to the custody of the parents, and the trial court made a finding that there was overwhelming evidence that, in the best interest of the children, the plan was to change the goal to adoption. The trial court said appellant’s continuing pattern of poor judgment that affected the health and safety of the children could not be ignored.
The TPR petition was filed on September 19, 2016, specifically asserting as grounds for termination of parental rights according to Arkansas Code Annotated section 9-27-341(b)(3)(B) (Repl. 2015):
(i)(a) That the juveniles have been adjudicated by the Court to be dependent-neglected and have continued out of the custody of the parents for more than twelve (12) months and despite a meaningful effort by the department to rehabilitate the parents and correct the conditions which caused removal, those conditions have not been remedied by the parents.
(vii)(a) That other • factors or issues arose subsequent to the filing of the original petition for dependency-neglect' that demonstrate that placement of the juveniles in the custody of the parents is contrary to the juveniles’ health, safety or welfare and that despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate |9the parent’s circumstances which prevent the placement of the juveniles in the custody of the parents.
(ix)(a)(S)(B)(i) The parents have subjected the juveniles to aggravated circumstances in that there is little likelihood that services to the family will result of successful reunification.
Appellant filed her answer on October 4, 2016, and a hearing on the TPR petition was held on October 19,2016.
On October 26, 2016, a TPR order was entered that included findings that (a) the trial court had adjudicated the children to be dependent-neglected, the children had remained out of custody of the parents for more than (12) months, and despite ADHS efforts, the parents had “failed to remedy any of the parenting issues that caused the removal of the juveniles in this case”; (b) the trial court reported that other factors arose subsequent to the filing of the original petition and that ADHS had “made a meaningful effort to rehabilitate the parents and correct the condition that caused the removal ... (and) these efforts have been meaningful because they directly addressed the parenting issues that caused the removal ... and (c) appellant had “subjected the juveniles to aggravated circumstances ... that there [was] little likelihood that services [would] result in successful reunification ... because appellant [had] failed to comply with the case plan and orders ... despite (ADHS’s) meaningful efforts, reasonable efforts, and offer of appropriate family services throughout the nineteen-month pendency of this case.” Appellant fíled a timely notice of appeal on November 15, 2016.
II. Standard of Review and Applicable Law
Our court recently reiterated the standard of review in TPR cases as follows:
Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment | inor destruction of the health and well-being of the child. In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile. Additionally, the circuit court must also find by clear and convincing evidence that one or more statutory grounds for termination exists.
Termination-of-parental-rights cases are reviewed de novo. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. 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. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses.
Jones v. Ark. Dep’t of Human Servs., 2017 Ark. App. 125 at 6, 515 S.W.3d 151, 155 (citations omitted).
Termination of parental rights requires clear and convincing evidence that two elements exist. Ark. Code Ann. § 9-27-341(b)(3). First, that TPR is in the child’s best interest. Id. And second, at least one of nine statutory grounds exist. Id. Here the trial court found that these conditions existed, and we hold that a review of the record does not leave a definite and firm conviction that these findings were a mistake.
The juvenile code requires that a best-interest finding be based upon a consideration of at least two factors: (1) the likelihood that, if parental rights are terminated, the children will be adopted; and (2) the potential harm caused by “continuing contact with the parent, parents, or putative parent or parents.” Ark. Code Ann. § 9-27-341(b)(3)(A). But it is the overall evidence—not proof of each factor—that must demonstrate that TPR is in the child’s best interest. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005).
|nUnder the juvenile code, TPR requires that the circuit court consider the likelihood of adoption. Ark. Code Ann. § 9-27-341(b)(3)(A)(i). This factor, however, does not require that adoptability be proved, by clear and convincing evidence. Duckery v. Ark. Dep’t of Human Sens., 2016 Ark. App. 358, 2016 WL 4455696. There instead must be evidence that addresses the likelihood of adoption. Thompson v. Ark Dep’t of Human Servs., 2012 Ark. App. 124, 2012 WL 386762.
The juvenile code also requires that, to terminate parental rights, the circuit court must consider potential harm. Ark. Code Ann. § 9—27—341(b)(3)(A)(ii). This factor, however, does not require that a specific potential harm be proved by clear and convincing evidence. Pine v. Ark Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm evidence moreover must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App. 527, 443 S.W.3d 599.
Although the juvenile code provides nine different grounds that warrant termination, see section 9-27-341(b)(3)(B), in order to terminate parental rights only one ground is needed. Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007). And on de novo review, the court can affirm the trial court’s TPR decision on any ground that was alleged in the petition and proved. Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483.
III. Discussion
A. Grounds for Termination
Appellant initially argues that although the children had been adjudicated to be dependent-neglected and had been out of her custody for more than twelve months, conditions causing removal had been remedied and custody had been restored to her. She | ^acknowledges that progress toward, or even completion of, ■ the case plan is not a bar to termination of parental rights. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.3d 520. She concedes that what matters is whether completion of the case plan achieved the intended result of making a parent capable of caring for her children; mere compliance with the directives of the court and ADHS is not sufficient if the root cause of the problem was not adequately addressed. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008). However, appellant claims that she not only completed the case plan, but did so to such an extent that the trial court restored custody to her.
With respect to the failure-to-remedy ground pursuant to section 9-27-341(b)(3)(B)(i)(6), the trial court made two key findings: (1) that A.E., Á.N., or both, had been subjected to neglect and (2) that A.E., A.N., or both, had been abused. This neglect and abuse led to A.E. and A.N.’s initial removal. We acknowledge that appellant subsequently was able to have A.E. and A.N. returned to her, but for the very same reasons—neglect and abuse—A.E. and A.N. were again removed from appellant’s custody.
We hold that the trial court’s conditions-not-remedied finding was not clearly erroneous. See Jung v. Ark. Dep’t of Human Servs., 2014 Ark. App. 523, 443 S.W.3d 555 (holding when parent’s drug problem led to children’s removal and after case began kept using drugs, evidence supported failure-to-remedy finding); Tuck v. Ark. Dep’t of Human Servs., 2014 Ark. App. 468, 442 S.W.3d 20 (holding when parent’s alcohol problem led to children’s removal and eight months after case began was charged with DWI, evidence supported failure-to-remedy finding).
Appellant also argues that there was no basis for the trial court’s aggravated-circumstances finding because she remedied the initial circumstances and had shown I ^likelihood that reunification would be successful. Appellant notes that the basis for the trial, court’s determination of aggravated circumstances was that “there-is little likelihood that services to the family will result in successful reunification ... because Appellant has failed to comply with the case plan and orders of the court despite... the Department’s meaningful efforts, reasonable efforts, and offer of appropriate family services throughout the nineteen-month pendency of this case. [Appellant] has failed to complete domestic violence classes.” She urges that this judicial conclusion is not supported by the record.
Appellant submits that the trial court had previously found as late as October 14, 2015, that she had successfully completed the ease plan, had complied with the plan and orders of the court, and had- received meaningful and reasonable efforts to such an extent that, with appropriate family services; she had custody restored to her.
With regard to the ‘^behavior” and purported “lack of bonding” of the children with appellant, she notes three things: first, there was no mention in the record of these purported factors from October 2013 through January 2016, while the minors were either in ADHS care, with their ma-. ternal grandmother, or with appellant; second, these factors only arose after the January 2016 removal from appellant; and third, it is speculative, at best, to attribute these factors to anything appellant had done or failed to do inasmuch as these factors were not present while appellant had her children, when appellant visited during their first removal, or during placement with the maternal grandmother. Appellant claims that the forced removal from her is as likely to have caused the post-2016 behavior as any act of commission or omission by her.
Regarding the aggravated-circumstances ground, section 9-27-341(b)(3)(B)(ix) provides that aggravated circumstances exist when the trial court finds that there is little ^likelihood that services would result in successful reunification. We hold that the clear and convincing evidence shows that the trial court’s aggravated-circumstances finding was not clearly erroneous.' Neglect and abuse led to ADHS’s long-term involvement with appellant, A.E., and A.N. ADHS’s involvement included A.E. and A.N.’s out-of-homé placement, totaling approximately nineteen months. After A.E. and A.N.’s initial removal for neglect and abuse, appellant succeeded in regaining their custody. ADHS provided multiple services to keep 'A.E. and A.N. in appellant’s custody, but she lost it because of continued neglect and abuse. Accordingly, we hold that the trial court’s little-likelihood finding was not clearly- erroneous. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006) (affirming little-likelihood finding when parent was given multiple opportunities over a long period to properly care for child yet failed to).
B. Best-Interest Analysis
Regarding the best interest analysis, specifically as to adoptability, ADHS-assigned family service worker, Amy Vaughn, opined that if appellant’s parental rights were terminated, the likelihood of A.E. and A.N.’s adoption was “very high.” Additionally, ADHS-assigned adoption specialist, Raelyn Shook, agreed that the probability of adoption wás “very high.” Under our current caselaw, this provides sufficient evidence to support the circuit court’s adoptability finding. See Threadgill v. Ark. Dep’t of Human Servs., 2011 Ark. App. 642, 386 S.W.3d 543; Cobbs v. Ark. Dep’t of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004).
Regarding the potential-harm factor, our review indicates that the trial court thoroughly reviewed and adjudicated the evidence related to this factor throughout the l1Bextended pendency of. this case. Despite appellant’s regaining custody of the children for a period of time, by January 2016, the trial court found upon review that, since the last hearing, there had been a radical change, including illegal drug use, potential loss of housing, and lack of proper supervision. At that time, the trial court ordered A.E. and A.N. returned to ADHS’s custody. Within a few months, the trial court ordered the case goal changed to adoption and authorized ADHS to pursue the termination of appellant’s parental rights.
Testimony at the hearing on the TPR petition from caseworkers Amy Vaughn and LaToya Maxwell, as well as CASA volunteer Brian Lachowski, supports the trial court’s potential-harm finding. Appellant was given an opportunity to show she could successfully parent—after A.E. and A.N. had been in an eleven-month out-of-home placement—had custo-. dy been returned to her. ADHS, in an effort to maintain A.E. and A.N. in the family home, provided multiple services, but they were unsuccessful. Appellant (1) tested positive for a controlled substance for which she had no prescription; (2) failed to pay her rent; (3) failed to provide A.E. and A.N. needed supervision; (4) failed to keep her house clean; (5) obtained drugs for Nichols; and (6) burned A.E. Stated differently, A.E., A.N., or both, again suffered neglect, abuse, or both. Appellant also failed to obtain and maintain her own stable and appropriate home, which the trial court had ordered her to do. She instead lived with her mother, Debbie Edgar. The failure to provide a stable, proper home is considered neglect. Ark. Code Ann. § 9-27-303(36)(A)(ii). Further, it shows evidence of-potential harm. See Latham v. Ark. Dep’t of Human Servs., 99 Ark. App. 25, 256 S.W.3d 543 (2007) hfl(affirming termination decision when parent was unable to provide child with “most basic, need—a stable home”).
Appellant throughout this case exhibited poor judgment, as evidenced by the examples previously set forth. Past behavior is correctly viewed as a predictor of potential harm. See Helvey v. Ark Dep’t of Human Servs., 2016 Ark. App. 418, 501 S.W.3d 398. The foregoing raises great'concerns about appellant’s ability to satisfy A.E. and A.N.’s moral, intellectual, and physical developmental needs. Accordingly, we hold that the trial court’s finding that continued contact with appellant would cause A.E. and A.N. to suffer potential harm does not leave á definite and firm conviction that a mistake was made.
Affirmed.
Abramson and Glover, JJ., agree.
. Neglect includes failure to provide shelter and proper environment and inadequate supervision. Ark. Code Ann. §§ 9-27-303(36)(A)(ii), 9-27-303(36)(A)(iv), 9-27-303(3 6)(A)(vii), 9-27-303(3 6)(A)(viii). | [
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ROBERT J. GLADWIN, Judge
| Appellant Kenyon Taylor appeals his conviction by a Garland County jury of one count of murder in the first degree, one count of battery in the first degree, and a firearm enhancement, for which he received an aggregate sentence of fifty-five years’ imprisonment in the Arkansas Department of Correction (ADC). He challenges the sufficiency of the evidence supporting his convictions and also alleges that the trial court erred in suppressing evidence of the victim’s intoxication. We affirm.
|2I. Facts
Appellant initially was charged with first-degree murder and criminal attempt to commit first-degree murder; however, at trial, the State timely amended the criminal-attempt charge to battery in the first degree. The evidence at trial indicates that appellant was tried on a theory of accomplice liability—with his brother, Ja-eorei Thornton, viewed as the alleged principal. At trial, the following evidence was adduced. Juan Manuel Santiago testified that on June 23, 2012, he, along with his friends, victim R.J. Shinkle, and Shinkle’s girlfriend, Tammy Hunter, were drinking and hanging out at Shinkle’s house. Shin-kle called Bryce Lewis and asked him to come hang out with them. Lewis came to Shinkle’s house with his girlfriend, Christi Myers, Larell (last name unknown) “Rell,” and appellant, who was known as “Too Easy.”
While at Shinkle’s house, they all went into Shinkle’s bedroom where he showed off an antique beer sign that he thought he could sell for eight hundred dollars. Everyone commented about the sign, and Shin-kle became angry and slapped appellant. Appellant grabbed Santiago’s arm and asked if Shinkle was serious. Santiago said that Shinkle was mad that no one was on his side and told everyone to get out of his house. After everyone had left, Santiago and Shinkle went to a store to get cigarettes. Lewis, who was still with appellant, testified that appellant was angry about having been slapped, and while in the car, he called someone on the phone and kept telling that person to meet him somewhere. Lewis dropped appellant off and went to another friend’s house.
Detective Scott Lampinen of the Hot Springs Police Department (“HSPD”) testified that cell-phone records confirmed that appellant had called his brother, Thornton, seven | ¡¡times from 11:44 p.m. on June 23 to 12:05 a.m. on June 24. A little after 12:00 a.m., appellant called Lewis from Thornton’s phone and told him to tell Shinkle to come outside because he wanted to fight him. Lewis told appellant that he was not going to tell Shinkle that. Lewis tried to call Shinkle but accidentally dialed Hunter, Shinkle’s girlfriend, and told her to tell Shinkle to call him. Shinkle called Lewis back, who then told Lewis that appellant was looking for him and wanting to fight; Lewis refused to fight. Appellant called Lewis later, between 2:00 a.m. and 2:30 a.m., from Thornton’s phone and said, “Yeah, I handled that.” There was not another phone call between appellant and Thornton until 3:17 a.m., after Shinkle had shot and killed.
At some point during that time period, Santiago and Shinkle returned from the store, and when they parked, Santiago saw two black males, one large and one small, on a motorcycle or scooter. Shinkle got out of his truck and went to the front where the two males began shooting. Santiago was shot in the arm and ran toward his house.
Detective Patrick Langley with the HSPD testified that on the night of June 24, 2012, he was dispatched to the scene. Upon his arrival, he observed Shinkle lying in the roadway with blood flowing around his head. Dr. Stephen Erickson, deputy chief medical examiner for the Arkansas State Crime Lab (“ASCL”), testified that Shinkle had been shot with a gun from a very close range of less than one inch and had multiple pistol-whipping-pattern injuries on his head. Dr. Erickson told investigators about Shinkle’s being pistol-whipped repeatedly. Shinkle bled out very quickly and profusely and died soon after being shot. Santiago was shot in the arm and whs left with a scar.
| ¿Both Shinkle and Santiago had been shot with HPR nine-millimeter bullets, which Rebecca Mullen, from the ASGL firearm and tool-mark section, explained was an uncommon brand. A nine-millimeter gun was found between two couches at Thornton’s house loaded with the uncommon HPR nine-millimeter ammunition two days after the murder. A motorcycle was recovered pursuant to a search warrant at Thornton’s house, along with clothing that contained particles of gunshot residue. Finally, Tempest Snell testified that appellant and Thornton were discussing someone getting pistol-whipped and “stomped” at Thornton’s, residence after the crime had occurred. Snell signed a statement two days after Shinkle had been killed stating that appellant and Thornton were talking about pistol-whipping someone who slapped appellant earlier that night.
Defense counsel moved for a directed verdict at the close of the State’s case-in-chief. The defense put .on no theory or witness but made a renewal of the directed-verdict motion. Both motions were denied by the trial court. The jury convicted appellant on all counts and sentenced appellant to fifty-five years in the ADC. The sentencing order was filed on September 26, 2014, with an amended sentencing, order filed on October 2, 2014. Appellant timely appealed the amended sentencing order on October 22, 2014.
II. Sufficiency of the Evidence
A, Standard of Review and Applicable Law
In reviewing a challenge to the sufficiency. of the evidence, we view the evidence in the light most favorable to the State and consider, only the evidence that supports the verdict. Ealy v. State, 2017 Ark. App. 35, 511 S.W.3d 355. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that 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. Id. On appeal, we consider only the evidence that supports the verdict, viewing the evidence in the light'most favorable to the State. Ressler v. State, 2017 Ark. App. 208, 518 S.W.3d 690, 2017 WL 1277423. We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Id. Witness credibility is an issue for the fact-finder,- who is free to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent, evidence. Id.
Substantial evidence can be either direct or circumstantial. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731. Direct evidence is evidence that proves a fact without resorting to inference, such as when a witness testifies as to what he saw, heard, or experienced. Id. Circumstantial evidence is evidence from which a fact may be inferred. Id. Evidence of guilt is not less because it is circumstantial. Id. Further, circumstantial evidence may constitute substantial evidence to support a conviction. Holland v. State, 2017 Ark. App. 49, 510 S.W.3d 311.
In cases in which accomplice liability is implicated, there must be substantial evidence that a defendant acted,as an accomplice in the commission of an alleged offense. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. A person is an accomplice of another person in the commission of an offense if, with.the purpose of promoting or facilitating the commission of an offense, the person solicits, advises, encourages, or coerces the other person to commit.the offense or aids, agrees to aid, or- attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403(a)(l)(2) (Repl. 2013). Under the accomplice-liability statute, a defendant may properly be found guilty not only of his own 1 (¡conduct, but also the conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally hable for the conduct of both. Green, 2013 Ark. 497 at 7, 430 S.W.3d at 737. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.
Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict and affirms where the record reveals that substantial evidence sustains the verdict. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008).
B. Procedural Issue
A threshold determination is preservation of a sufficiency challenge. To preserve a sufficiency-of-the-evidence challenge on appeal, a timely, clear, and specific motion for directed verdict must be made to the trial court. Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787 (citing Ark. R. Crim. P. 33.1(c)). Appellant claims that such a motion was made in this case, and even though not required, a renewed motion was made after appellant had put on no evidence. Despite the State’s assertion that appellant’s sufficiency argument is barred because he moved generally for a directed verdict but, not as to the specific elements of the crimes for which he was convicted, we hold that his motions were sufficiently specific to call to the trial court’s attention the alleged defect in the evidence.
Defense counsel stated in his initial motion that nobody saw. appellant or his brother at the scene of the murder and likewise noted that there was no physical evidence placing them at the scene. He called to the trial court’s attention that the only physical evidence at the scene pointed to a third party who committed the act and who was not appellant or his ^brother. Finally, he argued that there was no link that put appellant or his brother at the scene of the crime with a gun. In his renewed motion, the argument was again made that there was no physical evidence to connect appellant or . his brother to the crimes; the motorcycle alleged to have been used, in the murder provided no physical evidence of the crimes; and there was no connection of appellant or his brother to the victims’ injuries.
The test for a sufficiently supported directed-verdict motion is whether the motion points to any specific flaws in the State’s case or identifies any elements of the criminal acts that had not been proved. Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005); see also Elkins v. State, 374 Ark. 399, 288 S.W.3d 570 (2008). Unlike the motions in Pinell and Elkins, appellant’s arguments in support of his motions pointed out the lack of evidence and that the State had failed to exclude every other reasonable hypothesis than his guilt in the crimes. Accordingly, we hold that they were sufficient to preserve the. issue for review. .
C. Discussion
Appellant argues that the evidence at trial was all circumstantial and failed to exclude other reasonable hypotheses other than guilt. Appellant notes that no witness could identify either his brother, Thornton, the alleged principal, or him at trial, or even the basic elements of their appearances. Neither eyewitness, Hunter or Santiago, could identify appellant or the shooter, even though both clearly saw appellant hours before the shooting when he left Shinkle’s house.
Appellant submits that there was no physical evidence, such as blood, DNA, fingerprints, ballistics, or tool marks linking appellant and Thornton to Shinkle or Santiago. He claims that the only evidence presented that supported the theory that appellant or | ¿Thornton took some action against Shinkle was that (1) appellant seemed shocked after Shinkle had slapped him; (2) he called Thornton; (3) he called Bryce Lewis wanting to fight Shinkle; (4) he called Lewis back later saying he “handled it”; and (5) Snell overheard someone telling someone else that Shinkle had been stomped and whipped, but not by appellant or Thornton. Appellant submits that there were multiple theories that were inconsistent with his guilt or the commission of a criminal act by Thornton—the clearest and most plausible being that someone else killed Shinkle. Appellant points out that there was unidentified DNA at the scene. Likewise, the murder weapon was never found, even though law enforcement seized multiple guns from appellant and Thornton.
He reiterates the longstanding rule in the use of circumstantial evidence that to be substantial, the evidence must exclude every other reasonable hypothesis other than the guilt of the accused. Sales, supra. While appellant acknowledges that the question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide, see Sales, supra, he notes that evidence of guilt is not substantial if the jury must engage in speculation or conjecture about who caused the death of the victim. See id.
Accomplice liability may be shown by circumstantial evidence without direct proof of a conspiracy agreement. See Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). When a case is based on circumstantial evidence, relevant circumstances in determining the connection of an accomplice with a crime include the presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a |9manner suggestive of joint participation. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
Under Arkansas Code Annotated section 5-10-102 (Repl. 2013), a person commits murder in the first degree if acting alone or with another person he causes the death with a purpose of causing death to another person. Additionally, under Arkansas Code Annotated section 5-13-201(a)(l), a person commits battery in the first degree if with the purpose of causing serious physical injury to another person, the person causes serious physical injury to any person by means of a deadly weapon. Considering only the evidence that supports the verdict and viewing the evidence in the light most favorable to the State, we hold that the evidence presented was sufficient to show that appellant, acting with Thornton, purposely shot and killed Shinkle and shot and injured Santiago.
It is undisputed that Shinkle was less than one inch away from the gun that killed him when it was fired, subsequent to him having been pistol-whipped multiple times on both sides of his head. After Shinkle had been killed, Snell heard appellant and Thornton talking about pistol whipping someone, and she signed a statement two days after Shinkle had been killed that indicated that appellant and Thornton had been talking about pistol-whipping someone who had slapped appellant earlier on the night that Shinkle was killed. The investigator did not know about the pistol-whipping until Dr. Erickson con ducted his autopsy and phoned to tell him. Further, it is undisputed that Santiago was shot in the arm by a firearm, which is a deadly weapon, even if it has faulty ammunition that could not inflict serious injury. See Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).
|inWe hold that the State presented sufficient evidence to show that appellant and Thornton were working together when Shinkle and Santiago were shot. The multiple phone calls from appellant to and from Thornton on the evening of June 28, 2012, and the morning of June 24, 2012, along •with appellant’s call to Lewis from Thornton’s phone shortly after the shooting indicating that he had “handled” the matter, and Snell’s testimony about appellant and Thornton discussing the pistol-whipping incident provided substantial circumstantial evidence from which the jury could base its findings of appellant’s guilt.
III. Suppression of Victim’s Intoxication
A. Standard of Review and Applicable Law
A trial court’s ruling on the admission of evidence of other crimes is entitled to great weight and will not be reversed absent an abuse of discretion. Ark. R. Evid. 404(b) (2016). See Williams v. State, 2016 Ark. App. 507, 505 S.W.3d 234. This high threshold does not simply require a demonstration of error in the court’s decision but rather a demonstration that the trial court acted improvidently, thoughtlessly, or without due consideration. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008). Evidentiary rulings will also not be reversed absent a showing of prejudice. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).
Arkansas Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the- evidence.” Evidence which is not relevant is not admissible. Ark. R. Evid. 402. Even if evidence is relevant, it may be excluded if, its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
|nB. Discussion
Appellant argues that alternate theories consistent with his innocence were improperly masked by the trial court’s suppression of Shinkle’s intoxication as irrelevant during the guilt phase. He maintains that evidence proffered at trial indicated that Shinkle was substantially intoxicated by alcohol and methamphetamine. While -acknowledging that evidence of intoxication may be more prejudicial than probative in certain circumstances, appellant maintains that Shinkle’s strange behavior caused by his intoxication bolstered the fact that someone else may have killed him. Appellant argues that he should have been permitted to imply the same to the jury.
We disagree and hold that the trial court did not abuse its discretion by excluding evidence regarding Shinkle’s intoxication. Before trial, the State filed a motion in limine to prevent admission of evidence regarding the autopsy report that showed that Shinkle was intoxicated at the time of his death because the prejudicial nature of the evidence outweighed any probative value. Appellant responded that witness Lewis would testify that he and Shinkle had been drinking, that Shin-kle was “really drunk,” and Lewis’s testimony would corroborate the autopsy finding. The trial court preliminarily excluded the evidence and held that it was not a fact in dispute but that it would readdress the issue if testimony presented made it relevant during the case-in-chief.
Outside the presence of the jury, appellant’s counsel asked Dr. Erickson a series of questions regarding Shinkle’s autopsy and thé levels of intoxication in the event that subsequent testimony allowed for the admission of evidence of Shinkle’s intoxication. 11 ¡¿However, appellant failed to introduce subsequent testimony that would have allowed for the admission.
In Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000), the Arkansas Supreme Court considered the use of testimony regarding illicit drugs found in a victim’s system: ‘
In its motion, the State asserted that the finding of cocaine was not relevant to the cause of death, and would be extremely prejudicial. The defense responded that the evidence could be probative of the issue of whether or-not [the victim] was likely to have provoked [the defendant] to react as he did. The trial court granted the motion before the trial began, agreeing that the cocaine evidence would be more prejudicial than probative, and noting that there was nothing to show that the cocaine had anything to do with the confrontation. However, the court said that if, during the trial, any proof to that effect was shown, he would reconsider his ruling.
Id. at 396, 10 S.W.3d at 452. The court found that the trial court did not abuse its discretion by excluding the evidence based on the trial court’s finding that the evidence was mox-e prejudicial than probative. Id. at 397, 10 S.W.3d at 453. Moreover, the court also observed that there was no evidence that linked the cocaine to the murder. Id.
As in Jones, the trial court did not abuse its discretion in excluding -the evidence because the presence of alcohol in Shin-kle’s blood was not relevant to the cause, of his death. Appellant did not rely on a justification defense. While appellant argues that Shinkle’s behavior was bizarre and hostile and that Shinkle could have had interactions with other people that night, the only factual issue in -dispute in this case was whether appellant or Thornton purposely shot, and killed Shinkle. The existence, of alcohol in Shinkle’s blood was a situational factor and did not change the fact that Shinkle died from a gunshot wound. The evidence regarding his level of intoxication was therefore not relevant under.Rules 401 and 402.
| ^Additionally, appellant has not shown prejudice by the' trial court’s exclusion of -the evidence. Hunter testified that she and Shinkle had been sitting on'the front porch with Santiago “talking, drinking beer, and listening to some music” around 10:00 p.m. on June 23, 2012/ and that Shinkle “had begun drinking beer around 8:00 p.m.” Santiago corroborated that testimony, except to clarify that he and Shinkle “had been drinking beer since about seven o’clock that night,” that he stopped drinking when he went to the hospital, and that he could not recall if they had smoked marijuana. Additionally, Meyers testified that she and her boyfriend Lewis had stopped at Shinkle’s house that same night because Lewis was supposed to sell Shin-kle some marijuana—although Lewis testified that he went there to smoke it with Shinkle, not sell it to him, but they never did. Meyers explained that no one had time to smoke any marijuana, but she pointed out. that Shinkle was intoxicated and somewhat angry when he came over to their car. Witnesses were consistent in their testimony about Shinkle’s slapping appellant as a result of comments made about the beer sign and his making fun of the shade of various individuals’ skin color. Accordingly, uncontroverted evidence of Shinkle’s intoxication and agitated behav- íor was before the jury despite the suppression of the evidence in question. Because appellant fails to show.an abuse of discretion or prejudice, we affirm.
Affirmed.
Abramson and Glover, JJ., agree.
. On July 24, 2015, Taylor’s attorney filed a no-merit 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)(l) (2015), seeking to withdraw as counsel. On November 4, 2015, appellant filed pro se points pursuant to Rule 4-3(k)(2), raising several issues for this court to consid- . er on appeal. On December 11, 2015, the State responded to appellant’s pro se brief. On June 22, 2016, this court denied Taylor’s counsel’s motion to withdraw and ordered rebriefing due to counsel’s failure to abstract and discuss all adverse rulings in compliance with Rule 4-3(k), Taylor v. State, 2016 Ark. App. 347, at 3, 2016 WL 3563264. The case is now before us as a merit appeal. | [
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BART F. VIRDEN, Judge
_JjThe Sebastian County Circuit Court entered an order for long-term protective custody of appellant Jack Johnston, which he now appeals. Johnston argues that (1) the Arkansas Department of Human Services (the Department) failed to present evidence that his family was notified as required by Arkansas Code Annotated section 9-20-111, and (2) that the circuit court erred in limiting counsel’s cross-examination regarding Johnston’s assets and finances. We affirm.
I. Adult Maltreatment Custody Act
A “maltreated adult” means an adult who has been abused, exploited, neglected, physically abused, or sexually abused. Ark. Code Ann. § 9-20-103(15). “Neglect” includes self-neglect or an act or omission by a caregiver responsible for the care and supervision of |2an endangered or an impaired adult constituting negligent failure to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or an impaired adult, or to carry out a prescribed treatment plan. See Ark. Code Ann. § 9-20-103(17)(A) & (B)(i), (iii).
The Arkansas Department of Human Services or a law enforcement official may take a maltreated adult into emergency custody if the circumstances or condition of the maltreated adult are such that returning to or continuing at the maltreated adult’s place of residence or in the care of a person responsible for the maltreated adult’s care presents imminent danger to the maltreated adult’s health or safety, and the maltreated adult either lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents imminent danger to his or her health or safety, or has a mental impairment or a physical impairment that prevents the maltreated adult from protecting himself or herself from imminent danger to his or her health or safety. Ark. Code Ann. § 9-20-114(a)(1), (2).
Pursuant to Arkansas Code Annotated section 9-20-117(c), the trial court may order long-term custody with the Department if the court determines that
(1) The adult has a mental or physical impairment or lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to his or her health or safety;
(2) The adult is unable to provide for his or her own protection from maltreatment; and
(3) The court finds clear and convincing evidence that the adult to be placed is in need of placement as provided in this chapter.
I all Procedural History
On March 17, 2016, the Department filed a petition for emergency custody of Johnston pursuant to the Adult Maltreatment Custody Act. In its petition, the Department alleged that Johnston’s health and safety were in danger. Louise Spaun-hurst, a nurse with Adult Protective Services (APS), stated in the attached affidavit that APS had received a hotline call on March 9, 2016, concerning Johnston’s self-neglect. Johnston had refused to allow anyone to treat his wounds, he denied having any wounds, and he stated that he only had “war injuries.” Examination at Sparks Hospital revealed that he had multiple, severe open-pressure ulcers. His wounds required debridement and a colostomy aid. Johnston also had stage-three pressure ulcers to his right and left heels, a pressure ulcer on his left calf, and stage-three pressure ulcers to his left buttock and sacrum/coccyx area, and the area was surrounded by cellulitis. Johnston was diagnosed with dementia, a history of alcoholism, multiple decubitus ulcers, and a history of prostate cancer. Johnston lived with his son at the time the petition was filed. Nurse Spaunhurst stated that Johnston was impaired and lacked the mental capacity to comprehend the nature of the consequences of returning to his son’s home. She concluded that Johnston could not meet his daily nutritional, medication-related, financial, and medical needs and that Johnston required 24-hour care and supervision. Spaunhurst recommended that Johnston remain in the custody of APS. In the affidavit attached to the petition, Dr. Ahmad Koake stated that Johnston was both mentally and physically impaired, and he recommended that Johnston be placed in a skilled-nursing facility.
LThe circuit court entered an ex parte order for emergency custody and directed that Johnston be placed in the least restrictive environment necessary to meet his needs. Johnston was appointed counsel, and a probable-cause hearing was set for March 18, 2016.
The circuit court entered a probable-cause order the same day as the hearing. In its order, the circuit court found that no suitable primary caregiver was known to the Department, and it set a long-term custody hearing for April 14, 2016. The circuit court ordered notice to be given to Johnston’s counsel, his next of kin whose names and addresses were known to the court, the person having physical custody of Johnston, and any other required entities.
III. Custody Hearing
Spaunhurst testified at the long-term custody hearing that she had received the call to the hotline regarding Johnston. She stated that the caller informed her that Johnston was bedbound, that he would not allow anyone to treat his wounds, and that he was living with his son. Spaunhurst testified that she had examined Johnston at Sparks Hospital the next day, and she found him to be “self-oriented” only, confused, and unaware that he was in the hospital or why he was there. She testified that she had observed multiple wounds to his heels, legs, buttocks, coccyx, and sacrum. Spaunhurst testified that Johnston was moved to Select Specialty Hospital where he received antibiotics and wound care. Spaunhurst also testified that neither of Johnston’s children was willing or able to provide the level of care he required. Spaunhurst explained that Johnston’s son had told her that his father had “nothing at his house” except for a chair with a bad spring and that the son believed the chair was the cause of the bedsores. Spaunhurst stated that, in her investigation of Johnston’s Rcase, she spoke to his family, his physician, the nursing staff, the police, and Johnston himself. Based on her investigation, Spaunhurst believed that a long-term-care facility was the least restrictive environment possible to meet Johnston’s needs.
Spaunhurst also testified that Johnston received $1,521.64 from Social Security and that he had a bank account with a balance of $1,527.29. When counsel for Johnston asked Spaunhurst if she had made any other efforts to find assets in addition to the social security check and the bank account, the Department objected, stating that the questioning was beyond the scope of representation of an impaired or endangered individual. The circuit court sustained the objection and stated that counsel’s “obligation here is limited to ‘the issue of deprivation of liberty, but not with respect to issues involving property, money, investments or other fiscal issues.’ ” Counsel responded that she had a right to cross-examine Spaunhurst on the matter of financial information because it had been brought before the court. The circuit court allowed counsel to ask Spaunhurst the question about any other assets that might exist in addition to the SSI and the bank account, and Spaunhurst replied, “I have no knowledge of any other assets that he has.”
The Department requested that Johnston remain in a skilled-nursing facility and that the circuit court find that Johnston was endangered and impaired, that he lacked the capacity to comprehend the nature and consequence of remaining in a situation that presents an imminent danger to himself and his safety, and that there was no adequate caregiver who was willing to provide the required level of care, and that the court authorize the Department to close Johnston’s bank account and transfer the balance to the long-term-care facility in which he would reside.
| ^Counsel for Johnston refused to sign the precedent, and explained that it was “because of the language in paragraph six, which discusses assets and future assets.”
On April 14, 2016, the circuit court entered the order for long-term protective custody. The circuit court found that Johnston was endangered or impaired and lacked the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to his health or safety. The circuit court specifically found that Johnston had been diagnosed with sacral decubitus ulcers associated with cellulitis, bilateral heel wounds and bilateral lower-extremity wounds, with a secondary diagnosis of alcoholism, malnutrition and encephalopathy, dementia, and prostate cancer. The circuit court found that Johnston was unable to care for himself or to protect himself and that Dr. Ur Rehman recommended 24-hour-a-day care for feeding, bathing, and for the administration of medication and that the least restrictive environment to achieve this care was a skilled-nursing facility. The circuit court found that there was no known caregiver willing to provide the level of care Johnston required, and it found by clear and convincing evidence that Johnston required such placement. The circuit court ordered that the Department have long-term custody of Johnston.
IV. Standard of Review
Our standard of review for probate orders is well established. This court re views probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the probate court to determine the credibility of witnesses. Adams v. Ark. Dep’t of Health & Human Servs., 375 Ark. 402, 409, 291 S.W.3d 172, 177 (2009).
|7V. Discussion
A. Failure to Notify Family
Johnston argues that the circuit court erred in finding that he was an adult in need of placement because the Department presented no evidence that his family members had received the notice required by Arkansas Code Annotated section 9-20—111(d)(2), which provides that notice of the long-term-custody hearing shall be given to the next of kin of the respondent whose names and addresses are known to the petitioner. Johnston reasons that the Department’s failure to give notice to family members resulted in a lack of proof that there was no willing or able caregiver available to provide Johnston with the level of care he required.
Although Johnston argues that Spaun-hurst’s testimony that neither of Johnston’s children was willing or able to provide for his care is “clearly hearsay” and that “little to no foundation was laid for the testimony, neither a hearsay nor a foundational objection was made below thus, these issues are not preserved for review on appeal. Doran v. Ark. Dep’t of Human Servs., 2014 Ark. App. 505, 442 S.W.3d 868.
Johnston asserts the alternative argument that there was no evidence presented concerning his children’s ability to collect entitlements or income that may have been available to Johnston. Johnston failed to raise this argument below; thus, we do not address it. Doran, supra. Although we agree that notice was not given, the nature of the argument is procedural and not one of sufficiency; therefore, we do not address the merits.
|8B. Limiting Cross-Examination
Johnston also argues that it was a violation of his due-process rights and reversible error for the circuit court to limit his ability to cross-examine Spaunhurst as to his assets or available benefits. Johnston points to Arkansas Code Annotated section 9—20—108(f)(1), which provides that
[i]f a maltreated adult is found to be indigent or the court appoints the Arkansas Public Defender Commission as counsel for the maltreated adult, the commission shall represent the maltreated adult as to the issue of deprivation of liberty, but not with respect to issues involving property, money, investments, or other fiscal issues.
Johnston argues that his liberty interest directly relates to his financial assets, and thus, questioning should have been allowed on the matter. At the hearing, the circuit court first sustained the objection to further cross-examination concerning any other financial assets Johnston might have aside from his social security and the bank account; however, the circuit court subsequently allowed the question, stating from the bench, “We’ll let her answer that and then we’ll go from there. But I don’t think we’ll go on any more about property.” Nurse Spaunhurst responded, “I have no knowledge of any other assets that he has.” Based on this testimony, we do not see how Johnston can demonstrate prejudice.
IV. Conclusion
The circuit court made the requisite findings. We cannot say that the circuit court clearly erred in entering an order placing Johnston in the long-term protective custody of the Department.
Affirmed.
loHixson, J., agrees.
Vaught, J., concurs.
. Codified at Ark. Code Ann. §§ 9-20-101 et seq. (Repl. 2009). | [
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RITA W. GRUBER, Chief Judge
hJeromy A. Geelhoed was charged in the Circuit Court of Randolph County with committing second-degree domestic battering. The State alleged that on November 16, 2014, Geelhoed used a leather belt to administer “licks” to his nine-year-old son, bruising the child’s buttocks and the backs of his legs; made the child maintain a push-up position for up to 25 minutes; and slammed his head into concrete, causing a laceration. The State later filed a motion in limine under Arkansas Rule of Evidence 404(b) to admit evidence to the jury about prior violence and acts that Geelhoed had committed against the victim and other juveniles in the family. At a pretrial hearing, Geelhoed asserted that this evidence, prior bad acts of physical abuse in the family, was not relevant to the charge of committing domestic battering in 2014 and would prejudice the jury against him. The court ruled that the State | gcould present Rule 404(b) evidence “only with a limit[ing] instruction and if you approach the bench prior to it being offered. It still has to be relevant and admissible.” Over Geelhoed’s objection at trial, witnesses testified about Geelhoed’s prior physical abuse of juveniles in the family. The jury found him guilty, and the court sentenced him to 36 months’ imprisonment in the Arkansas Department of Correction. Geel-hoed now appeals, contending that the trial court erred in admitting into evidence the prior allegations of physical abuse. We affirm.
In its case-in-chief, the State first presented evidence of the 2014 incident that led to the charge of domestic battering. Sergeant Jessie McMillan of the Pocahontas Police Department testified that he had been dispatched to the home of the victim’s mother the night of November 14, 2014, in response to a child-abuse call. He testified that he saw “pretty severe bruising ... on the back of [the boy’s] legs and butt from the bend of his knees up to the top of the waistline” and that the boy was terrified to go back home to his father’s house, where he primarily lived. The child told McMillan that his father had given him thirteen licks with a belt, slammed his head into the concrete, and made him hold a push-up position. The child explained to McMillan that if “you hit the ground [from the push-up position] then it’s automatic butt whipping. My brother’s record was forty-five minutes. I had thirty-five.”
Sergeant McMillan, Officer Mike King, and Allison Starr—the Department of Human Services (DHS) investigator who was on call—went to Geelhoed’s house. He told them that the bruising could have happened when the boy climbed out a window, jumped a fence, or |splayed with his sister. Geelhoed denied the abuse and said,
The little girl in there and him seem to beat each other up with something. I don’t hit them on the legs. There is no purpose in that. If I have a problem with him I put him in a push up position until he falls. Everybody knows that burn hurts. I don’t have to whip that ass.
He described the victim as “stubborn and crafty ... very scripted by his mother.”
Allison Starr testified that she had spoken with the victim alone and photographed his bruises. She testified that other members of the family signed a protection plan the next day but that Geel-hoed did not want to because, in his words, he “did not use physical discipline.” However, in the garage he showed her a “cloth rolled up belt”; he said that he used it for spanking and that it would not have made those marks on the boy.
Nurse practitioner Leah Privett testified that the victim said that Geelhoed hurt him “a lot” and recently had spanked him thirteen times with a belt, had made him stay in a pushup position for an extended time period, and had “pushed his head in the ground,” causing an abrasion above the left eye. She identified the photographs of his injuries as being consistent with what he had told her; her assessment and diagnosis was child abuse.
The victim testified by closed-circuit television, explaining how he “got the bruises” at his dad’s house in November 2014 for doing something wrong:
I was in the push-up position and he spanked me. I cannot recall how many times. He hit me with a belt. It was a leather belt that had metal [rings] on it; by the size and the pain I was in, it was more than ten times. All I could see was the ground. It hurt really bad. I had an injury to my forehead. Dad slammed my head onto the concrete.... He is the person who hit me and gave me the bruises but I think it was out of Ranger.
At this point in the trial, the State alerted the court that the State would attempt to elicit Rule 404(b) evidence from the years 2011 and 2012. Geelhoed objected that the evidence had no relevance to the case that was being tried. The court overruled the objection.
Arkansas Rule of Evidence 404(b) (2016) reads as follows:
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. 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.
Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Lard v. State, 2014 Ark. 1, at 6-7, 431 S.W.3d 249, 258. Evidence of circumstances that explain the act, show motive, or illustrate the accused’s state of mind may be independently relevant and admissible. Id. at 9, 431 S.W.3d at 259. If testimony of other crimes, wrongs, or acts is independently relevant to the main issue, tending to prove some material point rather than merely to prove that the defendant is a criminal, evidence of that conduct may be admissible with a proper cautionary instruction by the court. Smith v. State, 351 Ark. 468, 473, 95 S.W.3d 801, 804 (2003). The list of exceptions under Rule 404(b) is not an exclusive list; rather, it gives examples of types of circumstances where evidence of other crimes, wrongs, or acts would be relevant and admissible. Id. at 472-73, 95 S.W.3d at 804.
| ^Brenda Dupree, a DHS investigator for child maltreatment, testified that she had spoken with Geelhoed in the past about a December 2011 hotline report of physical abuse of the victim in the current case, who was then about seven years old:
He said that he whipped [the boy], that he had been expelled from school. That he was spoiled rotten, and that I could pull him out of the home if I wanted to. He said [the boy] would piss on your shoes and go sit on the couch and laugh at you. He said [the boy] played mind games, that he was just like his mom. He was sick in the head. He had serious mental problems if we did not give him constant attention. I believe he was seven years old at the time. He said he used jumper cable to whip [the boy].
Dupree stated that no action was taken by DHS or the courts following this incident. She explained that the allegations were found to be “unsubstantiated” because— without other persons, pictures, or visible or physical proof—there was nothing to verify the severity of the whipping. She explained, however, that “unsubstantiated” did not mean that DHS lacked a belief that the incident had occurred.
Dupree also testified about an incident involving medical neglect of the boy, which occurred a few months after the jumper-cable whipping. She testified that Geelhoed went to the boy’s school, saying that “he was going to remove [the boy]” and that it was Geelhoed’s business whether the boy was given his medicine. She described Geelhoed as being “very angry” at the time.
Geelhoed’s oldest son, the victim’s nineteen-year-old half brother, testified that his father was the household’s disciplinarian. Geelhoed objected on grounds of relevancy to the present case when the witness was asked if he had ever disclosed being abused by his father. The court overruled the objection. The State asked the witness if he remembered telling] „ investigators in 2005 that Geelhoed had slapped him in the face. Geelhoed objected that eleven years ago was too far afield. Again, the objection was overruled. The witness said that he might have said it but could not recall and did not remember talking to investigators about abuse by his father. When asked if he recalled telling investigators in 2009 that Geelhoed had picked him up by the throat and put him against the wall, the witness testified that he remembered speaking to investigators and that Geel-hoed had grabbed him by the jaw and slammed him against the wall, an act of “intimidation” as punishment for choking his brother.
“[Wjhere children are concerned, evidence of physical injuries to other children in the home and even to a child in another home is probative of intent and the absence of mistake or accident." Branstetter v. State, 346 Ark. 62, 73, 57 S.W.3d 105, 112 (2001). The Branstetter court wrote:
[The evidence] had a tendency to make it more probable the injuries were not the result of an accident or mistake and, thus, the evidence was relevant under Ark. R. Evid. 402. It also bears on intent. The evidence was not offered to show the bad character of Branstetter in an attempt to give the jury reason to believe that Branstetter is the type of person who would commit such an act, but rather was offered to show intent and lack of mistake or accident in the presently charged crime. The evidence is independently relevant proof of Bran-stetter’s intent and the absence of mistake or accident in committing the offense. The evidence is admissible under the intent and absence-of-mistake-or-accident exception to Ark. R. Evid. 404(b).
Id. at 74, 57 S.W.3d at 113. Similarly, the trial court in the present case ruled that evidence of Geelhoed’s prior bad acts was not admitted as evidence of bad character.
“Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice^]” Ark. R. Evid. 403 (2016). Evidence offered by the State, although likely to be prejudicial to the accused, should not be excluded unless the accused car]7 show that it lacks probative value in view of the risk of unfair prejudice. Robinson v. State, 2016 Ark. App. 550, at 11, 506 S.W.3d 881. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse of discretion. Id. Likewise, the balancing of probative value against prejudice is left to a trial court’s sound discretion; we will not reverse the lower court’s ruling absent a showing of manifest abuse. Id. Abuse of discretion is a high threshold that does not simply require error; it requires that the trial court act improvidently, thoughtlessly, or without due consideration. Id. Geelhoed has failed to show how testimony by Dupree and the victim’s brother about prior bad acts was unfairly prejudicial, nor has he shown that the trial court acted improvidently, thoughtlessly, or without due consideration in allowing the testimony into evidence.
Geelhoed asserts on appeal that there was no “finding or argument” that the prior bad acts were independently relevant to a material fact in this case and that the trial court did not “scrutinize” the Rule 404(b) evidence to determine if its probative value was substantially outweighed by the danger of unfair prejudice or other factors. We disagree.
The trial court stated in the pretrial hearing that Rule 404(b) evidence would be admitted only if it was relevant; Geel-hoed’s relevancy objections were overruled during trial; and Geelhoed made no specific argument regarding scrutiny. We agree with the State that these prior bad acts were introduced to establish that Geelhoed had used physical abuse to punish his children for wrongdoing before the incident leading to the present case, in which he physically abused the victim as punishment, and were particularly relevant to show that hejs intentionally caused the injuries to the victim. Geelhoed has made no showing that the trial court manifestly abused its discretion in ruling that the evidence was relevant to the 2014 incident.
Geelhoed also complains that, despite the trial court’s pretrial ruling that a limiting instruction would be given, the jury was not provided with a limiting or cautionary instruction when the Rule 404(b) evidence was introduced at trial. We agree with the State that Geelhoed can claim no error because he did not specifically request that the instruction be given when the evidence was introduced.
In Vernon v. State, 2 Ark. App. 305, 621 S.W.2d 17 (1981), the appellant argued that the trial court erred in failing to give a cautionary instruction when the Rule 404(b) testimony was admitted. After giving the instruction, the court asked appellant’s counsel if that was satisfactory. Counsel answered that it was, no other objection was made, nor did counsel request any further action. We found no error in the timeliness of the cautionary instruction. See id.
Here, the trial court instructed the jury under AMI Crim. (Arkansas Model Criminal Instructions) 2d 203-A:
Members of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Jeromy Geelhoed may not be considered by you to prove the character of Jeromy Geelhoed 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 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 motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.
| aGeelhoed did not object to the timing of the cautionary instruction, and we find no error.
Affirmed.
Klappenbach and Glover, JJ., agree.
. A person commits second-degree domestic battering if the person knowingly causes physical injury to a family or household member he or she knows to be sixty years of age or older or twelve years of age or younger. Ark. Code Ann. § 5-26-3 04(a)(4) (Repl. 2013).
. The victim also testified that Geelhoed had hit him "one time before but not as bad,” using "the same kind of tool” and kicking him "around the house.” He said, "Everybody else was there except [two others]. He did this in the garage.” | [
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PER CURIAM
hln 1988, appellant Richard Alan Davis was found guilty by a jury in the Pulaski County Circuit Court in case number 60CR-87-1540 of capital murder, aggravated robbery, and theft of property. An aggregate sentence of life imprisonment without parole was imposed. Also in 1988, Davis was found guilty by a jury in Pulaski County in case number 60CR-87-1685 of an additional aggravated robbery and was sentenced to thirty years’ imprisonment. No appeal was taken from either judgment.
On June 20, 2016, Davis, who is incarcerated in a unit of the Arkansas Department of Correction located in Lee County, filed a pro se petition for writ of habeas corpus in the Lee County Circuit Court. Although he appended a copy of the judgments in case numbers 60CR-87-1540 and 60CR-87-1685 to the petition, he sought the writ only with respect to the judgment in case number 60CR-87-1685. The circuit court denied the petition without a hearing on the ground that Davis had not stated a ground for the writ. Davis, who remains incarcerated in Lee County, brings this appeal.
|2A 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, at 5, 434 S.W.3d 364, 367. 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.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas 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 is illegally detained. Ark. Code Ann. § 16-112-103(a)(l) (Repl. 2016). Unless the petitioner in proceedings for a writ of habeas corpus 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.
Davis’s arguments in this appeal mirror those in the habeas petition. He also argues on appeal that the circuit court erred by not holding a hearing on the petition.
Davis contends that the circuit court should have granted the writ because he was not properly advised of his rights against self-incrimination pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when he was interrogated by the police concerning the aggravated robbery. He further contends that the circuit court erred when it did not grant the writ on the ground that the trial court should have found his pretrial statement inadmissible under \ ¡Miranda. Davis urges this court to reverse the circuit court order because his claims demonstrated that the judgment in his case was illegal on its face and the trial court lacked jurisdiction to enter the judgment.
We affirm the order because Davis did not state a ground on which a writ of habeas corpus could be issued. As the judgment reflects, Davis was convicted of aggravated robbery and sentenced to an appropriate sentence for the offense. See Ark. Stat. Ann, §§ 41—901(l)(a); 41-2102(2) (Supp. 1985) (aggravated robbery is a Class Y felony punishable by ten to 40 years’ imprisonment). Accordingly, the 30-year sentence reflected on the judgment was within the statutory range and not illegal on its face. See Smith v. Hobbs, 2013 Ark. 400, 2013 WL 5603852 (per curiam).
There was also no showing by Davis that the trial court was without jurisdiction in the case. At the time Davis was found guilty of the aggravated robbery, which was committed in 1987 in Pulaski County, subject-matter jurisdiction was vested in the Pulaski County Circuit Court in criminal matters. Ark. Const, art. 7, § 11 (a circuit court in a county has subject matter jurisdiction over criminal offenses committed in that county). Regarding personal jurisdiction, the commission of the offense by Davis in Pulaski County subjected him to being charged and prosecuted in that county. See Ark. Stat. Ann. § 41-103 (Repl. 1977) (providing that a person can be convicted under the laws of this State and in its courts if conduct that is an element of the offense occurs within this State).
The grounds for the writ raised by Davis should have been raised during the trial. The grounds were not jurisdictional; rather, the allegations were assertions of error that could have been settled at trial. Even when trial error occurs, it is well settled that mere 14trial error does not deprive a court of jurisdiction. Rayford v. Kelley, 2016 Ark. 462, 507 S.W.3d 483 (per curiam); Tryon v. Hobbs, 2011 Ark. 76, 2011 WL 573832 (per curiam). A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal. Philyaw, 2015 Ark. 465, 477 S.W.3d 503. Davis’s arguments concerning whether he was properly advised under Miranda did not implicate the jurisdiction of the trial court or the facial validity of the judgment. See Grissom v. Hobbs, 2015 Ark. 449, 476 S.W.3d 160 (per curiam), cert. denied, Grissom v. Kelley, — U.S. -, 137 S.Ct. 187, 196 L.Ed.2d 152 (2016); see also Gardner v. Hobbs, 2015 Ark. 410, 2015 WL 6759502 (per curiam) (The petitioner’s contentions that a violation of his pretrial right to counsel or that his pretrial statements were somehow coerced are not cognizable as a claim for relief in a habeas proceeding.).
With respect to the circuit court’s decision to deny the petition for writ of habeas corpus without a hearing, we have held that a hearing on a petition for writ of habeas corpus is not required if the petition does not allege either of the bases for relief proper in a habeas proceeding; and, even if a cognizable claim is made, the writ will not be issued unless probable cause is shown for the writ to be issued. Philyaw, 2015 Ark. 465, at 4, 477 S.W.3d 503, 506. If a petitioner in a habeas proceeding fails to raise a claim within the purview of a habe-as action, the petitioner fails to meet his burden of demonstrating a basis for the writ to issue. Allen v. Kelley, 2016 Ark. 70, 482 S.W.3d 719 (per curiam). The claims Davis raised in his petition were not within the purview of a habeas proceeding. The circuit court was therefore not clearly erroneous in denying habeas relief without a hearing.
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WAYMOND M. BROWN, Judge
LA Pulaskj County jury convicted appellant Raheem Lindsey of three counts of aggravated robbery, three counts of kidnapping, two counts of theft of property, and one count of rape. He was sentenced to an aggregate term of thirty years’ imprisonment. On appeal, appellant contends that the evidence was insufficient to support his rape conviction for which he was sentenced to fifteen years’ imprisonment. We find no error and affirm.
On August 30, 2014, appellant, along with T.S., approached three workers as they were leaving Achy’s on Chenal Parkway in Little Rock and forced them back into the restaurant at' gun point. T.S. unsuccessfully attempted to force the victim, Jeremy James, to |gopen the time-locked safe. During this time, appellant made the other two victims, Erica Guzman and Christina Crumpton, lie on their stomachs at gun point. At some point, appellant forced Guzman up from the floor and into the women’s bathroom of the restaurant. He made her pull down her pants and underwear and get down on all fours. Appellant attempted to vaginally penetrate Guzman. Guzman testified that appellant penetrated enough to hurt her but that he was not able to completely penetrate her. She stated that appellant’s condom was left in her vagina. She testified that appellant then told her to perform oral sex on him and threatened to kill her as well as her co-workers if she refused. She stated that she performed oral sex on appellant and that she removed his penis from her mouth when she felt that he was about to ejaculate. She said that appellant ejaculated on the bathroom floor and that some of it got in her panties. She testified that appellant used her apron to clean up the ejaculation from the floor and her panties. She also said that he took the condom and the apron with him. She stated that appellant asked her for money, but she did not have any. He then took her i-Phone and placed it in his pocket. She testified that appellant had her at gun point at all relevant times. The whole ordeal lasted between ten to fifteen minutes, and appellant returned Guzman to her spot on the floor where she remained until he and T.S. left the restaurant. Guzman did not tell her coworkers about the rape, but she did rinse out her.mouth with water. Guzman subsequently had a rape kit performed on her, but her panties were not collected and sent to the crime lab. There was also a pubic hair that was' not tested and blood found on the floor of the bathroom that failed to be submitted for testing. Appellant was | ^apprehended shortly after leaving the restaurant because he and T.S. were involved in á car accident. The condom and the apron were never recovered.
Guzman admitted on cross-examination that at the time of the incident, she was in this country illegally and using the name Romina Guzman. She testified that she applied for a visa after the rape but returned to Mexico in June 2015 because her father had died. She said that ■ she was currently residing in Mexico and was only in the country for appellant’s trial.
Crumpton corroborated that appellant took Guzman to the back towards the restrooms during the robbery for approximately ten to fifteen minutes. James testified that at some point he noticed that Guzman was no longer lying on the floor but that he later looked and Guzman was back.
Appellant moved for a directed verdict after the State’s case, arguing that the State failed to prove the required element of penetration. The court denied the motion. Appellant did not present a case, but he did unsuccessfully renew his directed-verdict motion. The jury found him guilty of rape and recommended a sentence of fifteen years’ imprisonment to run consecutive to appellant’s other sentences. The sentencing order was filed on February 3, 2017. Appellant filed a timely notice of appeal on February 7, 2017. This appeal followed.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. When reviewing a challenge to the sufficiency of the evidence, this court assesses the [4evidence in the light most favorable to the State and considers only the evidence that supports the verdict. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence which 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. 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. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial.
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. “Sexual intercourse” is penetration, | .-.however slight, of the labia majora by a penis. “Deviate sexual activity” is defined 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. “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.
Appellant contends that there was insufficient evidence to support his conviction for rape because there was no physical evidence to support Guzman’s testimony that she was raped, and because Guzman had motive to lie about the rape since she was in this country illegally. These arguments are not preserved for our review because appellant. failed to raise them below. Appellant made no mention of Guzman’s credibility or the lack of physical evidence; rather, he challenged the element of penetration..Guzman testified that appellant attempted to penetrate her vaginally, but was unable to completely penetrate her. He then made her turn around and perform oral sex on him. She stated that appellant had her at gun point this entire time. Thus, the elements of rape, including penetration, were sufficiently proven. There is no requirement that the victim’s testimony be corroborated by other testimony or scientific evidence. The uncorroborated testimony of a rape victim describing penetration is enough for a conviction. The jury believed | ^Guzman’s testimony regarding penetration and substantial evidence supports the conviction. Accordingly, we affirm.
Affirmed.
Abramson and Murphy, JJ., agree.
. Appellant was seventeen at the time of the crimes. He attempted to have his' case transferred to the juvenile division but that request was denied. He subsequently appealed that denial, and, this court affirmed the trial court. See Lindsey v. State, 2016 Ark. App. 355, 498 S.W.3d 336.
. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517.
. Id.
. Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772.
. Hinton, supra.
. Id.
. Id.
. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008).
. Ark, Code Ann.' § 5—14—103(a)(1) (Repl. 2012).
. Ark. Code Ann. § 5-14-101(11).
. Ark, Code Ann, § 5-14-101(l)(A).
. Ark. Code Ann. §' 5-14-101(2).
. Rogers v. State, 2017 Ark. App. 521, 536 S.W.3d 128.
. id. | [
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John B. Robbins, Judge.
The appellant, Walter Kitchens, appeals from an order of the circuit court of Calhoun County awarding $114,620.00 plus interest and costs to appellees, John Evans and Sheldon Baum, who are assignees of claims by three medical facilities for medical services provided to Kitchens. On appeal, Kitchens contends that the court erred in finding that the debt, barred by the statute of limitations, had been revived by his conduct and erred in determining the amount of the judgment. We reverse and dismiss.
The record shows that on July 31, 1989, John Evans and Sheldon Baum filed a complaint reflecting six medical facilities as plaintiffs which alleged that Kitchens owed a total of $143,422.63 for medical services provided by the facilities. On September 22, 1989, Kitchens answered that the statute of limitations barred collection of any such debts. On January 22, 1990, the court granted John Evans’ motion to be substituted as plaintiff and dismissed claims concerning three of the medical facilities. On April 3, 1990, Sheldon Baum was joined as a plaintiff in the action.
Kitchens testified at the hearing on this matter that in a 1983 accident involving a Honda three-wheeler he sustained a spinal cord injury causing paralysis and that from 1983 through 1986 he received medical treatment from facilities in Arkansas, Texas, and Oklahoma. He stated that during this time he filed a lawsuit in Texas against American Honda Motor Company (Honda) seek ing, inter alia, reasonable medical expenses and that eventually the case was settled out of court. During this same period, he was involved in a divorce proceeding in Texas with his wife, Etta Kitchens. Kitchens testified that under the terms of the 1985 divorce decree, he agreed to pay “[a]ny hospital, doctor, and/or medical bills incurred by [Kitchens] regardless of when incurred.”
John Evans testified that through his association with Etta Kitchens, he learned about Kitchens’ injury and the lawsuit. He stated that he and Sheldon Baum contacted the three medical facilities and obtained assignments of Kitchens’ medical bills. The assignments from the Texas Institute for Research and Rehabilitation (TIRR), the Texas Rehabilitation Commission (TRC), and the City of Faith Hospital (CFH), which were purchased for approximately $26,500.00, represent $114,620.00 in medical bills.
Kitchens testified that he had never received a bill from TIRR or TRC. He stated that he received a bill from CFH in 1987 but later had received a letter from Medicare stating that Medicare had paid a portion of that bill. The record includes a copy of a bill from CFH, dated April 8, 1988, which reflects a balance of zero. Kitchens testified that he thought all medical bills had been paid, and he denied knowing that he owed money to the three facilities.
In a letter opinion denying Kitchens’ motion for summary judgment, the court stated:
Clearly, all of the claims in question are barred by the statutes of limitations. What, if anything, has occurred that would revive these debts? Arkansas law addresses acknowledgment by a debtor as in some situations to be sufficient. McHenry v. Littleton, 237 Ark. 483, 374 S.W.2d 171 (1964).
In the McHenry case, supra, the Court pointed out that acknowledgment need not affirmatively express an inten- . tion to pay the debt but that the debtor recognizes the debt as a subsisting obligation and further make no statement repelling the presumption that he intends to pay.
Mr. Kitchens generally acknowledged debts for medical services in his personal injury suit against Honda. As such he recognized, generally, such obligations and had made no indication, other than in this lawsuit, that he does not intend to pay.
In an order filed on July 20, 1992, the court stated:
The amounts of the assigned accounts for which [appellees] seek judgment against [Kitchens] are Texas Rehabilitation Commission — $52,379.00, the Institution of Rehabilitation and Research — $31,110.60, and the City of Faith Hospital — $31,131.35. The defense that the City of Faith Hospital account had a zero balance after payment by Medicaid is dismissed as said account was assigned to [appellees] for valuable consideration.
Kitchens first argues that the trial court erred in failing to find this action barred by Ark. Code Ann. § 16-56-106 (1987), which provides as follows:
(a) No action shall be brought to recover charges for medical services performed or provided prior to April 1, 1985, by a physician or other medical service provider after the expiration of a period of eighteen (18) months from the date the services were performed or provided.
(b) No action shall be brought to recover charges for medical services performed or provided after March 31, 1985, by a physician or other medical service provider after the expiration of a period of two (2) years from the date the services were performed or provided or from the date of the most recent partial payment for the services, whichever is later.
The trial court agreed that the action was barred by the above statute of limitations but found that the lawsuit filed by Kitchens, in which he sought damages that included his medical expenses, demonstrated his acknowledgment of the debt in issue and therefore had revived the debt. Kitchens contends his action was not sufficient to revive the debt.
Actions sufficient to revive a barred debt were discussed by the supreme court in Morris v. Carr, 77 Ark. 228 (1905), as follows:
The Supreme Court of the United States in Shepard v. Thompson, 122 U.S. 231, uses this language: “The statute of limitations is to be upheld and enforced, not as resting only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to. pay it, made either before or after the bar of the statute is complete. But, in order to continue or revive the cause of action after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay the debt, or else an express acknowledgment of the debt, from which his promise to pay may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as still substituting as a personal obligation of the debtor.’
In Ringo v. Brooks, 26 Ark. 541, where it was held that the acknowledgment was not sufficient because it did not point out the debt, and was made to a stranger, Judge SEARLE, in discussing the facts of that case, said: “Like all other acknowledgments and promises having legal force and sanction, they must be made to a party in interest; to the person to whom the debt is due, or one authorized to act for him, and with the intent at the time to pay it.” The court in that case did not say, nor did the court mean, nor was it necessary to hold, that such intention to pay must be expressed in the acknowledgment. All that case meant to hold was that the acknowledgment should be made to the party in interest, and be of such unequivocal character as to recognize the indebtedness as a subsisting obligation, and that there should be nothing in the face of the writing or written evidence of acknowledgment to repel the presumption of an intention to pay which the law raises by such acknowledgments.
77 Ark. at 232-33. In Morris v. Carr, cited above, the appellee wrote the appellant asking if the appellant wanted to pay off a promissory note or use the money for another yean The court found that when the appellant responded that “he would retain the money,” he clearly acknowledged the debt as a subsisting obligation. The court stated that it found no proof to overturn the trial court’s finding that the above language was not accompanied by anything negativing the presumption of an intention to pay the debt.
In Schaefer v. Baker, 181 Ark. 620, 27 S.W.2d 83 (1930), the appellant took title by inheritance to an encumbered piece of real estate. The court found the obligation revived when she wrote a letter advising the creditor that she was not in a position to pay her father’s debt at that time and stating “please advise me what to do.” The court found that she not only acknowledged the lien against the property but promised to discharge it.
In McHenry v. Littleton, 237 Ark. 483, 374 S.W.2d 171 (1964), a lender brought suit to foreclose a mortgage upon land owned by a husband and wife. In response to a letter from the lender, the couple sent the lender a money order and the wife stated in the accompanying letter: “I am hoping to be able to pay the account in full in the near future. I thought when I talked with [you] last that I would soon be able to pay you every penny on my account at once, but have been disappointed.” Some months later, the wife offered by letter to pay on the account and added: “I cannot pay it all now.” The court found these letters were sufficient acknowledgments to revive the debt.
In Wright v. Wright, 279 Ark. 35, 648 S.W.2d 473 (1983), a father sought repayment of a $10,000.00 loan to his son and daughter-in-law. The son and his wife used the $10,000.00 as payment on land they bought from M. J. Graham. When the father inquired about repayment of the loan, the son and his wife wrote in a letter to the father:
Concerning the 10,000. We can’t get it from Mr. M. J. Graham because he is 6 ft. under the ground.
You have a monthly income if you can’t live on it then we think you should go to a rest home and live. They will take care of you for the income you receive.
The court held that the letter did not recognize the indebtedness as a subsisting obligation and, therefore, fell short of providing a revival by acknowledgment.
In the case at bar, the trial court found that by filing the suit against Honda, Kitchens recognized “generally” his obligation to pay the bills in issue. We conclude from our review of the cases discussed above that this court must determine if the filing of the suit or the agreement incorporated into the divorce decree was (1) an express promise to pay the debts or an express acknowledgment of the debts from which Kitchens’ promise to pay may be inferred, and (2) an acknowledgment of the specific debts asserted to “the party in interest” or to “the person to whom the debt is due.” This standard also has been stated as follows: “In order to take the debt out of the statute or to avoid prescription, the acknowledgment or promise must be made, not to a stranger, but to the creditor himself or to someone acting for him, or with the intention that it be communicated to the creditor.” 54 C.J.S. Limitations of Actions § 262 (1987). In applying the principles set forth in the above authorities, we find that Kitchens’ actions in the case at bar fall far short of providing a revival of the debts. Neither the filing of the lawsuit nor the language in the divorce decree constitutes an acknowledgment of the specific debts to the specific creditors. Because we reverse and dismiss on Kitchens’ first point, we need not address his second point for reversal.
Appellees contend that should this court find that Kitchens’ actions did not revive the debt, the court then must affirm the trial court’s order pursuant to one of three alternative theories. First, appellees contend' this court should apply a different statute of limitations. Appellees argue that because Kitchens agreed in the property settlement incorporated into the divorce decree that he would be responsible for any medical debts he incurred, the proper statute to be applied is Ark. Code Ann. § 16-56-114 (1987), which provides: “Actions on all judgments and decrees shall be commenced within ten (10) years after the cause of action shall accrue, and not afterward.” We do not agree. There is no evidence that the subject medical service providers were parties to Kitchens’ divorce action. Creditors are not ordinarily parties to a divorce action and are not, therefore, bound by an order regarding the parties’ debts. See Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982). Appellees, as assignees of these medical bills, did not and could not sue to enforce Kitchens’ divorce decree. They brought their action to recover judgment for medical bills. The supreme court has determined that the General Assembly intended § 16-56-106 to cover all actions brought to recover charges for medical services. See Ballheimer v. Serv. Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987).
Appellees also assert the doctrine of estoppel as an alternative basis for affirming the trial court’s order. We note that:
In general, a court may exercise its equitable jurisdiction and apply the doctrine of estoppel under appropriate facts to preclude [a party] from utilizing the statute of limitations as a bar, even in the absence of an express statutory basis for tolling the period. In particular, estoppel precludes [a party] from asserting the statute of limitations when his actions have fraudulently or inequitably invited [a party] to delay commencing legal action until the relevant statute of limitations has expired, or when [the other party] has done anything that would lull [a party] into inaction so that his vigilance is relaxed.
Before estoppel can toll the statute of limitations, the party to be estopped must be apprised of the facts; the other party must be ignorant of the true state of facts, and the party to be estopped must have acted so that the other party had a right to believe that the party intended its conduct to be acted upon; and the other party relied on the conduct to its prejudice.
Estoppel to plead limitations may arise from agreement of the parties, or from [the party’s] conduct or representations, including those of his agent or representative, or even from his silence when under an affirmative duty to speak. The issue is whether the conduct and representations of the party are so unfair and misleading as to outbalance the public’s interest in setting a limitation on bringing actions.
54 C.J.S. Limitations of Actions § 24 (1987). Appellees have failed to demonstrate that Kitchens invited them to delay legal action or lulled them into inaction.
Finally, appellees contend that because TRC is a gov - ernmental agency, its account is not even subject to a statute of limitations defense. However, “[t]he immunity of the state from application of the statutes of limitation does not extend to its assignee or transferee who is seeking to enforce rights purely for his private benefit.” 54 C.J.S. Limitations of Actions § 20 (1987). See also Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1945).
Reversed and dismissed.
Pittman and Rogers, JJ., agree. | [
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Sam Bird, Judge.
John Strickland, age sixteen, was charged in juvenile court with several counts of residential burglary, criminal trespass, and possession of a handgun. Prior to his court date, his family left Arkansas and moved to the state of Washington. When the juvenile failed to attend his first appearance hearing, a pick-up order was issued for him. He was eventually arrested in Washington and returned to Arkansas. His mother did not come with him.
At a June 2, 1997, detention hearing the juvenile judge held that Strickland was abandoned and ordered him placed in the custody of the Arkansas Department of Human Services (DHS), pending a June 25 adjudication hearing when Strickland’s mother was to be in court. DHS’s attorney, who happened to be present in the courtroom during the detention hearing, objected, arguing that there was no provision in the law for DHS to take custody of a criminal juvenile whose family lived out of state. The judge ordered DHS to take custody anyway.
On June 25, 1997, Strickland’s mother failed to appear. Strickland pled “true” to the charges, was placed on two years probation, and was again ordered to be placed in the custody of DHS pending further orders of the court. Again, DHS’s attorney objected. She argued that Strickland had a felony criminal record and properly belonged in the Division of Youth Services because he did not meet the criteria of Ark. Code Ann. § 9-27-328 (Supp. 1997). The judge said Strickland was abandoned, neglected, or abused, and ordered DHS to take custody of him.
DHS now appeals arguing that the trial court erred in placing custody of Strickland with DHS because (1) such placement is forbidden by Ark. Code Ann. § 9-27-326 (Supp. 1997); (2) no emergency existed under the definition in Ark. Code Ann. § 9-27-314 (Supp. 1997); (3) the juvenile was not dependent/ neglected, abused or abandoned; and (4) there were no written findings made prior to the removal of the juvenile from the custody of his mother as required by Ark. Code Ann. § 9-27-328 (Supp. 1997). We do not reach the merits of appellant’s arguments because appellant lacks standing to appeal the order of the juvenile court.
We find this case to be controlled by Arkansas Dep’t of Human Servs. v. Bailey, 318 Ark. 374, 885 S.W.2d 677 (1994). In that case DHS had been ordered to pay for treatment of the juvenile at a treatment facility. On appeal brought by DHS, the Arkansas Supreme Court relied upon Dep’t of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990), and Quattlebaum and CBM, Inc. v. Gray, 252 Ark. 610, 480 S.W.2d 339 (1972), and dismissed the appeal. It held, “ [A]ny relief to which DHS may be entitled must be afforded in the trial court because our general rule is that this court cannot act upon an appeal taken by one not a party to the action below.”
In the case at bar, just as in Arkansas Dep’t. Of Human Servs. v. Bailey, supra, DHS’s name never appeared in the style of the case until this appeal was filed, and DHS never attempted to intervene or take any other action to become a party to the case. Furthermore, until such time as DHS filed its notice of appeal, this case was styled, “State of Arkansas v. John Strickland,” just as is the court reporter’s certified transcript of proceedings. In fact, the first and only time that the style of this case appears to have become known as, “Arkansas Department of Human Services v. John Strickland” is on the cover sheet that was created by the clerk of this court and attached as the front cover of the record when the record was lodged in connection with this appeal.
In reaching this conclusion, we have not overlooked In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990), in which our supreme court noted that the general rule (that it could not act upon an appeal taken by one not a party to the action below) is subject to an exception for a nonparty who is pecuniarily affected by the judgment. However, we find In the Matter of Allen, supra, to be distinguishable from the case at bar.
The Allen case was an action on a petition for the involuntary commitment of a mentally ill patient. The executive director and the medical director for Western Arkansas Counseling and Guidance Center, Inc. (Western Arkansas), which was not a party to the suit, were called to testify at a commitment hearing. They testified that the patient needed to be hospitalized but that there was no space available for her at the State Hospital. Upon finding that the patient required hospitalization, the trial court, on its own motion, ordered Western Arkansas to pay $10,000 into the registry of the court to be used to pay the expenses for private hospitalization of the patient. Western Arkansas appealed from that order and the supreme court, after first observing that Western Arkansas had not been a party to the action in the trial court, declined to dismiss the appeal because of the “long recognized exception to the general rule for one pecuniarily affected by a judgment.” 304 Ark. at 223, 800 S.W.2d at 717.
In the case at bar, there is no indication from the record, nor is it argued, that DHS is pecuniarily affected by the order of the trial court placing custody of the juvenile with DHS.
If DHS contends that the juvenile court is without jurisdiction to place the juvenile in its custody or has exercised a power not authorized by law, its remedy is to seek relief by way of a collateral attack upon the judgment through a petition for writ of prohibition, see Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992), or a petition for writ of certiorari, see Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993).
Appeal dismissed.
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James R. Cooper, Judge.
The appellee in this workers’ compensation case sustained a compensable injury on September 26, 1983, when he was hit by a cotton trailer in the course of his employment with the appellant contracting company. The appellants accepted the claim as compensable and paid compensation until a dispute arose in 1985. The appellee filed a claim for additional compensation on July 2, 1985, and, after a hearing, was awarded additional compensation on February 4, 1986. Although the appellee continued to receive medical treatment for his compensable injury at least once each year, the appellants discontinued payment of disability benefits and payment for medical treatments provided after July 26, 1988. The appellee sought the resumption of benefits by a claim filed with the Workers’ Compensation Commission on January 31, 1990. The appellants responded by asserting that the claim was barred by the statute of limitations, Ark. Code Ann. § ll-9-702(b). The Commission found that the appellee’s claim was not barred, holding that the statute of limitations had been tolled by the appellants’ claim for additional compensation previously filed in 1985. From that decision, comes this appeal.
For reversal, the appellants contend that the Commission erred in concluding that the appellee’s claim is not barred by the statute of limitations found in Ark. Code Ann. § ll-9-702(b). We affirm.
The statute relied upon by the Commission, Ark. Code Ann. § 11-9-702(b) (Supp. 1993), provides that claims for additional compensation shall be barred unless filed within one year from the date of the last payment of compensation, or two years from the date of the injury, whichever is greater. The appellants argue that the Commission erroneously concluded that a prior claim for additional compensation has the effect of tolling the statute of limitations indefinitely. We do not address the issue of whether a timely claim for additional compensation tolls the statute of limitations forever, because we do not think that the claim filed on January 31, 1990, constituted a claim for “additional compensation” so as to be subject to the limitations period stated in Ark. Code Ann. § ll-9-702(b). There is nothing in the record before us to show that the award of compensation made pursuant to the Commission’s order of February 4, 1986, had expired, or that the cessation of benefits by the appellants was sanctioned in any form. Instead, it is clear from the record that the appellants simply refused to continue the payment of benefits previously awarded by the Commission pursuant to its order of February 1986. Furthermore, it is clear that the order appealed from merely awarded temporary total disability and medical benefits related to the compensable injury. Given that the appellee was already entitled to those benefits by virtue of the Commission’s 1986 order, we think that the Commission erred in concluding that the appellee’s claim was one for “additional” compensation so as to be subject to the limitations periods provided for in § ll-9-702(b). Instead, we regard the appellee’s claim as one for enforcement of the Commission’s previous order, rather than a request for additional compensation, and we hold that the claim was therefore not barred by § ll-9-702(b). Because the Commission arrived at the same result, its decision is affirmed.
Affirmed.
Rogers, J., agrees.
Jennings, C.J., and Mayfield, J., concur.
Pittman and Robbins, JJ., dissent. | [
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Wendell L. Griffen, Judge.
In this unbriefed employment security case, Sanford Buchanan appeals the Board of Review’s denial of his claim for unemployment benefits. The Board determined that appellant was not eligible for benefits because he did not have transportation or a driver’s license. We hold that, as a matter of law, mere lack of personal transportation and a driver’s license does not constitute unavailability for suitable work. Accordingly, we reverse the decision of the Board of Review and remand for benefits.
The Employment Security Department denied benefits pursuant to Ark. Code Ann. § 11-10-507(3)(A) (Repl. 2002), which requires that a person be unemployed, physically and mentally able to perform suitable work, available for such work, and doing things that a reasonably prudent individual would be expected to do to secure work before being entitled to employment security benefits. At the telephone conference before the Arkansas Appeals Tribunal, appellant testified that he had no transportation. He generally relied on a relative to take him to work. Occasionally, a co worker would take him to work if he and the co worker worked the same shift. However, his former employer introduced a policy requiring all employees to have a valid driver’s license. Appellant explained that he was terminated because he did not have a driver’s license. He also remarked that most employers in Little Rock require their employees to have transportation.
The Appeals Tribunal found that appellant’s lack of transportation and a driver’s license made him unavailable for suitable work. The Board of Review affirmed and adopted the Tribunal’s decision, specifically finding that “[appellant’s] lack of transportation unreasonably limits his job market.” This appeal followed.
We affirm the decision of the Board of Review if it is supported by substantial evidence. Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences therefrom in the light of the Board’s findings. Id. Like a jury, an administrative body is free to accept or reject the testimony of witnesses. Gunter v. Director, 82 Ark. App. 346, 107 S.W.3d 902 (2003). Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based upon the evidence presented. Billings v. Director, supra.
The Board of Review’s finding that appellant was unavailable for work was based on appellant’s lack of transportation. The public policy of employment security law is to set aside resources to be used for the benefit of people who are unemployed through no fault of their own. Sanyo Mfg. Corp. v. Stiles, 17 Ark. App. 20, 702 S.W.2d 421 (1986). To that end, we reversed the Board of Review and held that a claimant, who was not highly skilled, lived in an area where work available for her was sparse, and had transportation but could not relocate unless the job payed at least $4.00 per hour, was not unavailable to work. Hefton v. Daniels, 270 Ark. 857, 606 S.W.2d 379 (Ark. App. 1980). We also reversed a decision of the Board when it denied benefits to a claimant who was receiving workers’ compensation benefits for permanent-partial benefits but was released by her doctor to do light-duty work. Ross v. Daniels, 266 Ark. 1056, 599 S.W.2d 390 (Ark. App. 1980).
Our case law supports the general principle that a reduction in the amount of work available to a claimant is insufficient reason to find that the claimant is unavailable to work. True, claimants may be in a position where the amount of employment available to them is severely limited due to some general inability. The claimant’s potential job prospects in Hefton were severely limited by her lack of skills and location. The claimant in Ross was limited by her permanent-partial disability. Yet, these claimants were available to work.
With these principles in mind, we hold that mere lack of transportation and a driver’s license does not constitute unavailability to work under employment security law. We have found no Arkansas statute, court decision, or administrative ruling that requires personal transportation or a valid driver’s license. We are mindful that many employment opportunities will be unavailable to appellant; however, as long as there exists employment that does not require appellant to have a driver’s license, he is available to work. Accordingly, we reverse the decision of the Board of Review and remand this case for a determination of benefits.
Reversed and remanded.
Gladwin and Baker, JJ., agree. | [
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David M. Glover, Judge.
Appellant, Robert LeFever, was convicted by a jury in the Western District of Carroll County of raping his sister-in-law, A.L., “between December 1998 and December 1999,” and he was sentenced to ten years in the Arkansas Department of Correction. On appeal, he raises four issues: (1) the trial court erred in denying his motion to suppress his videotaped statement taken by J.R. Davenport of the Arkansas State Police; (2) the trial court erred in allowing his probation officer to testify about a statement made by him to the probation officer; (3) the trial court erred by refusing to allow a defense witness to testify with regard to the authenticity of a letter he asserted was allegedly written by A.L.; (4) there was insufficient evidence to establish that A.L. was thirteen years of age or younger at the time of the commission of the offense. We affirm appellant’s rape conviction.
Although appellant’s sufficiency argument is listed as his fourth issue on appeal, we must address it first. Preservation of an appellant’s right against double jeopardy requires that appellate courts consider the challenge to the sufficiency of the evidence before alleged trial error is considered, even if the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). Additionally, although appellant did not abstract his motion for directed verdict, a review of the record indicates that he did preserve his sufficiency argument in his directed-verdict motion that was made to the trial court. A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003).
Appellant’s only contention with regard to the sufficiency of the evidence is that the State failed to establish that A.L. was thirteen at the time of the commission of the offense. We disagree. A.L., whose birthday is December 11, 1985, testified that she began babysitting for her sister, appellant’s wife, in the summer of 1998, and that she and appellant first had sex that summer. On appeal, appellant points to testimony from A.L. that this first encounter occurred at appellant’s house in Grandview and that his family did not live in Grandview until April 1999. However, the jury, when faced with conflicting evidence, was entitled to believe A.L.’s version of the events.
Nevertheless, appellant’s videotaped statement corroborated A.L.’s testimony that their sexual encounters began before she was fourteen. In it, he said that he had sex with A.L. “probably half a dozen times” between January and March 1999 before he went to prison in Pennsylvania in April 1999. Therefore, even if the first sexual encounter did not occur until January 1999, A.L. was still only thirteen years old at that time. The jury had before it substantial evidence from which it could conclude that A.L. was only thirteen when appellant began having sex with her.
Appellant contends in his first argument on appeal that the trial court erred in denying his motion to suppress his videotaped statement. He presents four subpoints under this argument: (1) he was not warned of his rights under Rule 2.3 of the Arkansas Rules of Criminal Procedure; (2) his Fourth Amendment rights were violated; (3) the State failed to establish a valid waiver of his rights; (4) he was deceived into waiving his Miranda rights and was tricked into answering questions on a pretextual basis that the investigation allegedly involved his own daughter. We find none of these subpoints to be persuasive.
When reviewing a trial court’s denial of a motion to suppress, the appellate court conducts “a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.” Saulsberry v. State, 81 Ark. App. 419, 423, 102 S.W.3d 907, 910 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)).
At the suppression hearing, appellant’s probation officer, Nancy Hunter, testified that on December 30, 2002, as a result of a telephone call from J.R. Davenport of the State Police Crimes Against Children Unit, she left a message on appellant’s answering machine asking him to come to her office the next day. Appellant called her back that afternoon, and he told her that Ms. Davenport had called him and asked him to go to the sheriff s office the next morning. Hunter said that she told him to “go be a man,” tell the truth, and quit playing games. She denied threatening to put him in jail ifhe did not go to the sheriffs office, and she said that she did not have the authority to do that. She stated that she never told appellant that he was under an obligation to go to the sheriffs office, but she did admit on cross-examination that she told him to report there at 10 a.m.
J.R. Davenport testified that she did not tell appellant that he had an obligation to go to the sheriffs office for an interview; however, she said that appellant did comply with her request. She Mirandized him prior to the interview, and he signed a waiver-of-rights form. In the interview, which was videotaped, appellant admitted that he had sex with his wife’s sister and that it started in early 1999.
Under the first subpoint of his suppression argument, appellant contends that his videotaped statement should be suppressed because he was not informed of his rights under Rule 2.3 of the Arkansas Rules of Criminal Procedure, which provides:
If a law enforcement officer acting pursuant to this rale requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
In State v. Bell, 329 Ark. 422, 431, 948 S.W.2d 557, 562 (1997), our supreme court held that Rule 2.3 will no longer be interpreted “to require a verbal warning of freedom to leave as a bright-line rule for determining whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed.” Rather, the appellate courts now view a verbal admonition of freedom to leave as only a factor in the totality of the circumstances in reviewing compliance with Rule 2.3, and Arkansas courts follow United States v. Mendenhall, 446 U.S. 544 (1980), in determining whether a seizure of a person has occurred.
In Mendenhall, the United States Supreme Court held:
We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents’ questions. It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.
446 U.S. at 553-56 (citations omitted).
In the present case, appellant was asked to come to the sheriff s office. His probation officer denied that she threatened to put him in jail if he did not comply with the request, and she testified that she never told him that he had to go to the sheriffs office, although she admitted on cross-examination that she told appellant to report to the sheriff s office at ten the next morning. Officer Davenport testified that she did not tell appellant that he had an obligation to go to the sheriff s office for an interview, but that he did comply with her request. Appellant drove to the sheriffs office with his family. Officer Davenport read appellant his Miranda rights before she began asking him any questions, and appellant signed a waiver-of-rights form. In the subsequent interview, which was videotaped, Officer Davenport was the only person in the room with appellant, and she never touched appellant in any manner or raised her voice during the questioning. None of the Mendenhall factors that would indicate an involuntary statement are present in the instant case. Given the totality of the circumstances, we cannot say that appellant’s statement was not voluntary.
To the extent that it is not covered in appellant’s first subpoint concerning Rule 2.3 of the Arkansas Rules of Criminal Procedure, appellant’s second subpoint of his suppression argument that his Fourth Amendment rights were violated is not preserved for our review because appellant failed to get a ruling on this issue. In his argument, appellant states, “The [trial] Court, without addressing the Fourth and Fifth Amendment issues, summarily denied the Defendant’s Motion to Suppress discussing only the 2.3 basis for suppression.” An appellant must obtain a ruling on his argument to preserve the matter for this court; it was appellant’s responsibility to obtain a ruling with respect to his argument alleging the violation of his Fourth Amendment rights, which he admitted he did not do, and his failure to do so precludes review on appeal. See Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003).
Nevertheless, even if we were to address the Fourth Amendment issue, we find the State’s argument persuasive that as a probationer, appellant’s supervision was a “special need” of the State that permitted a degree of impingement upon privacy that would not be constitutional if applied to the public at large. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). The State knew that appellant was on probation, and it had the authority to inquire about his behavior and compliance with the laws of the State.
Appellant’s third and fourth subpoints under his first argument can be addressed together, as they both pertain to appellant’s waiver of his rights. Although appellant attempts to characterize his videotaped confession as involuntary and obtained under deception, a review of the videotape reveals that he was read his rights prior to questioning, he stated that he understood those rights, and he signed a waiver of those rights. As discussed above, there is no indication that the waiver of appellant’s rights was obtained under duress or coercion, and we therefore reject the third and fourth subpoints of appellant’s first argument.
Appellant’s second argument is that the trial court erred in allowing his probation officer to testify about a statement appellant made to the probation officer. At trial, Terry Maddox testified, over appellant’s objection, that on August 12, 2003, when appellant was walking out of Maddox’s office after a regularly scheduled visit, appellant made the comment that there were young girls all over the country taking advantage of older men and that something needed to be done about that. Maddox said that the statement was spontaneous, and because he was not sure that he believed what he heard, he asked appellant, “What did you say?” at which time appellant repeated the statement. Maddox said that after that, he just told appellant, “Oh, see you next time.” Maddox testified that he was very surprised at appellant’s comment, and that was why he asked him to repeat it.
On appeal, appellant characterizes his statement as a discussion, and he claims that Maddox attempted to elicit information from him about the case, even though Maddox knew that he was already represented by counsel, who was not present at the time the statement was made. He argues that this “discussion” was a violation of his Sixth Amendment right to counsel. We disagree.
A suspect’s spontaneous statement is admissible against him or her; on review, the focus is on whether the statement was made in the context of a police interrogation, meaning direct or indirect questioning put to appellant by the police with the purpose of eliciting a statement from him or her. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). A spontaneous statement is admissible because it is not compelled or the result of coercion under the Fifth Amendment’s privilege against self-incrimination; volunteered statements are not barred by the Fifth Amendment and are admissible. Id.
In the present case, appellant made this comment to his probation officer as he was walking out of the probation office; because he was not sure what appellant had said, Maddox asked appellant what he said. Appellant repeated the statement, and Maddox made no other comment except that he would see him next time. It is apparent that the trial judge believed that this statement was spontaneous on appellant’s part, and we find no error in this ruling.
Appellant lastly contends in his third argument that the trial court erred in failing to allow his wife, Genine LeFever, who is A.L.’s older sister, to testify about the authenticity of a letter allegedly written by A.L. to the appellant in June 1999. In her testimony, A.L. had denied that she had written the letter. Genine LeFever testified that she had observed A.L.’s handwriting and would be able to recognize it; however, the trial court held that there had not been a sufficient foundation laid that she had seen enough of A.L.’s handwriting to recognize it. Appellant’s counsel then elicited that Genine had observed A.L.’s handwriting “several” times and had seen her handwriting regularly during the time that A.L. babysat for her. Genine testified that she had only seen the front of A.L.’s diary, not the contents, and that A.L. had not written her notes, but that A.L. had written notes and had drawn with her children. The trial court sustained the prosecution’s objection to Genine identifying the handwriting as A.L.’s, holding that appellant had not demonstrated the factual basis for Genine knowing A.L.’s handwriting and that seeing it “several” times was insufficient as to why she was familiar with A.L.’s handwriting.
The decision to admit or exclude evidence is within the sound discretion of the trial court, and the appellate courts will not reverse a trial court’s evidentiary ruling absent an abuse of discretion and a showing of prejudice. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). We cannot say that the trial judge, with the evidence before him, abused his discretion when he refused to allow Genine to testify regarding the letter allegedly written by A.L. Furthermore, even if it was an abuse of discretion, we fail to see how appellant was prejudiced by this refusal, as the contents of the letter did not go to the issue of whether appellant had sex with his thirteen-year-old sister-in-law.
Affirmed.
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John B. Robbins, Judge.
Appellee Magorie Smith sued her nephew, appellant Ray Townsend, for allegedly mishandling the assets of a corporation in which they each owned fifty percent of the stock. Following a trial, the jury entered a verdict against appellant for $200,000 in compensatory damages and $50,000 in punitive damages. Sometime thereafter, the trial judge ordered liquidation of the corporation. Appellant now appeals and argues that the trial court erred in: 1) granting appellee a directed verdict on certain issues; 2) depriving him of his Seventh Amendment right to a trial by jury; 3) instructing the jury on punitive damages; 4) ordering liquidation of the corporation; 5) appointing a receiver for the purpose of liquidating the corporation. We affirm in all respects.
Ray Townsend Farms, Inc. (hereafter “the corporation”), was formed in 1973 by Herman Ray Townsend, who was appellant’s grandfather and appellee’s father. Its primary, if not sole, asset was a large tract of land in Monroe County. The corporate shareholders and directors as of February 5, 1974, were Herman Townsend; appellee and her husband, Jim Smith; and Ray’s father and mother, Harold and Marie Townsend. After the deaths of Herman Townsend, Jim Smith, and Harold Townsend, appellant inherited some of the corporate stock, and, as of February 1991, the shareholders were: appellee, with 5,000 shares; appellant, with 4,670 shares; and appellant’s mother Marie, with 330 shares.
On February 4, 1991, an annual shareholders’ meeting was held, the first since 1974. Appellant and his mother were present, but appellee was not; she was not notified of the meeting. At the meeting, appellant was elected a director of the corporation, and a directors’ meeting was then held, wherein appellant was elected president and secretary-treasurer of the corporation. Appellant and his mother also voted to pay appellant $15,000 annually for the years 1988 to 1991 as compensation for maintenance of the corporate property and other work performed on behalf of the corporation. The minutes reflect that the corporation did not have the money to pay appellant at that time but would pay him in the future.
On September 27, 1995, a special meeting of the corporation’s board of directors was held to consider the sale of corporate land to the United States Department of the Interior, Fish and Wildlife Service. According to the minutes of this meeting, appellee had communicated with appellant and expressed an interest in selling the land. Although the minutes reflect that appellee did not actually attend this meeting, she would later testify that she agreed to sell the property and agreed with the price. Following the meeting, a corporate resolution was drafted allowing appellant as “de facto President and Secretary” to execute a contract for the sale of 713.5 acres of the corporate property to the U.S. Fish and Wildlife Service.
On February 5, 1996, while the sale was pending, the corporation held another annual shareholders’ meeting with appellant and his mother being the only ones present; appellee was not notified and did not attend. The minutes from this meeting show that appellant was again elected president and secretary. Further, appellant and his mother voted that, from the anticipated proceeds of the land sale, appellant would be 1) paid $15,000 per year from 1988 to 1996 for managing the property, as per an agreement he had with his late father, 2) reimbursed $9,281.68 for maintenance, improvements, and taxes paid on the land, and 3) reimbursed $10,957.27 for legal fees incurred in litigation between the corporation and the State Highway Commission. They also voted to reserve $15,000 for additional litigation expenses, because the lawsuit was ongoing.
The land sale was consummated on or about May 29, 1996, and the U.S. Fish and Wildlife Service paid the corporation $487,577.65. Appellant placed the proceeds into his attorney David Carruth’s trust account, and the proceeds were disbursed as follows:
1. Six separate payments to appellant in the amounts of $50,000, $25,000, $10,000, $50,000, $50,000, and $15,000, for a total of $200,000;
2. Three payments to attorney David Carruth totaling $43,225;
3. Six payments to various clerks and tax officials totaling $1,908.69;
4. Two payments to the U.S. Fish & Wildlife Service (purpose unknown) totaling $1,300; and
5. Two payments to Merchants & Planters Bank totaling $230,000 for a certificate of deposit, part of which was later used to purchase for the corporation 529 acres in Sharp County for $201,000.
According to attorney Carruth, a balance of $12,166.31 was left in his trust account after these disbursements, and, following the trial of this matter, he tendered that amount into the court registry.
On December 22, 1997, after unsuccessfully attempting to ascertain the details of the land sale and disbursement of the proceeds, appellee sued appellant and the corporation in Monroe County Circuit Court. She asserted that she and appellant each owned 5,000 shares of the corporate stock (Marie apparently having died some time after the 1996 meeting) and that appellant had acted without authority in distributing the proceeds of the land sale. By her complaint and a later amended complaint, she sought monetary damages, removal of appellant as a director, and liquidation of the corporation.
At the trial held on April 25, 2002, appellee claimed more specifically that appellant acted in bad faith by mishandling the proceeds of the land sale and by illegally holding the 1991 and 1996 shareholders’ meetings without a quorum and without notice to her. She further urged that, in light of appellant’s conduct and their deadlock as equal shareholders, grounds existed to liquidate the corporation. At the close of all the evidence, the trial judge granted a partial directed verdict in appellee’s favor, ruling that: 1) no quorum was present at the 1991 and 1996 meetings, thus making the actions taken at those meetings illegal; 2) appellee was not given notice of the meetings; 3) grounds existed to liquidate the corporation. As a result of the court’s ruling, the jury was instructed that:
Ladies and gentlemen, the Court has reached certain conclusions of law regarding this case which you are to accept. Those conclusions are as follows:
One, that there was not a quorum of the shareholders present at the annual meeting of the shareholders held on February 4, 1991 and any action taken at that and the subsequent directors meeting is without effect.
Two, the annual meeting of the corporation held on February 5, 1996 is also without effect because a quomm was not present and David Ray Townsend was not a director of the corporation.
The question of whether appellant was guilty of bad faith and misapplication of corporate assets went to the jury. Following deliberations, the jury rendered a unanimous verdict in favor of appellee and against appellant individually for $200,000 in compensatory damages and $50,000 in punitive damages.
Judgment on the jury’s verdict was entered on June 3, 2002. On August 9, 2002, the court entered an order asking the parties to agree on a receiver to be appointed for liquidation of the corporation. Appellant appealed from these two orders, but we dismissed the appeal for lack of finality. See Ray Townsend Farms, Inc. v. Smith, CA03-6 (Sept. 10, 2003) (not designated for publication). Following the entry of the June 3 and August 9, 2002, orders, the trial court entered an order on September 30, 2002, appointing a receiver. Then, on March 29, 2004, the court entered a liquidation order directing the receiver to sell the corporation’s Sharp County property and deposit the proceeds into the court registry. Upon completion of the liquidation of assets, the court stated, the corporation would be dissolved. Appellant now appeals from the March 29, 2004, liquidation order.
Timeliness of Appeal
We first address appellee’s argument that appellant’s appeal was filed too late. She contends that the September 30, 2002, order appointing a receiver was an appealable order, and therefore appellant should have appealed from it rather than the March 29, 2004, liquidation order. We hold that appellant properly appealed from the March 29, 2004, order.
Arkansas Rule of Appellate Procedure — Civil 2(a) (2004) provides that an appeal “may be taken” from certain interlocutory orders, among them, an order appointing a receiver. See Ark. R. App. P. - Civ. 2(a)(7); see also Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995) (holding that interlocutory appeals from orders appointing a receiver are permitted). The word “may” is generally interpreted to mean permissive or discretionary rather than mandatory. See Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). By using the word “may,” we believe that our supreme court intended for Rule 2(a) to permit certain interlocutory appeals but not to require that they be taken at the interlocutory stage. Thus, appellant could have appealed from the order appointing the receiver, but he was not required to do so. See also Bell v. Wilson, 298 Ark. 415, 418, 768 S.W.2d 23, 25 (1989) (overruling the case of Smith v. Smith, 235 Ark. 932, 362 S.W.2d 719 (1962), which had declared an appeal untimely where the appellant failed to file a notice of appeal from an interlocutory partition order; the Bell court stated that “we expressly overrule Smith v. Smith, and those cases holding that the appeal must be taken at an interlocutory stage in the proceedings.”). Further, the order that appellant has appealed from — the March 29, 2004, liquidation order — is a final, appealable order, directing the receiver to sell the corporate property and place the proceeds into the court registry. See generally Scherz v. Mundaca Inv. Corp., 318 Ark. 595, 886 S.W.2d 631 (1994) (holding that, where the trial court appointed a commissioner and ordered the sale of property, its directive was put into execution, and the order was final).
In light of the above, we conclude that appellant has appealed from a final order. Under Ark. R. App. P. - Civ. 2(b) (2004), his appeal also brings up for review any intermediate order involving the merits and necessarily affecting the judgment. Thus, the issues raised in this case are subject to our jurisdiction and proper for our review. We therefore proceed to the merits.
Grant of Partial Directed Verdict
Appellant argues that the trial court erred in ruling, by virtue of a directed verdict, that 1) there was no quorum present at the 1991 and 1996 shareholders’ meetings, 2) no notice of the meetings was given to appellee, and 3) grounds existed for liquidation of the corporation. In reviewing an order granting a motion for directed verdict, this court views the evidence in the light most favorable to the party against whom the verdict was directed, and if any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to have granted the motion for directed verdict. Hayes v. Advanced Towing Servs., 73 Ark. App. 36, 40 S.W.3d 800 (2001).
Appellant first contends that a jury question existed as to whether a quorum was present at the 1991 and 1996 annual shareholders’ meetings. The corporate bylaws state that “a majority of the holders of the outstanding voting stock of the Corporation shall constitute a quorum for the transaction ofbusiness.” The 1991 and 1996 meetings were attended by appellant and his mother, who, as two of the three shareholders, constituted a majority of those persons holding stock. However, as owners of only 5,000 of the 10,000 shares, they did not represent a majority of the outstanding corporate shares. Appellee, who owned the remaining 5,000 shares, was not in attendance. At trial, appellee’s expert witness, Raymond Abramson, testified that the bylaws should logically be interpreted to mean that a quorum consists of a majority of the shares rather than a majority of shareholders. Otherwise, he said, shareholders with very small amounts of stock could constitute a quorum in the absence of a majority shareholder. Appellant argues, however, that the express language of the bylaws provides that a majority of shareholders, as opposed to a majority of shares, constitutes a quorum. Because he and his mother constituted a majority of shareholders, he claims, there was evidence that a quorum was present at the meetings, and a directed verdict was therefore improper.
Appellant’s interpretation of the corporate bylaws is not unreasonable in light of the language used therein. However, the interpretation cannot stand under Arkansas law. Our legislature has decreed that a quorum for purposes of a shareholders’ meeting is a majority of the shares entitled to vote, unless the corporation’s articles of incorporation provide otherwise. Arkansas Code Annotated section 4-26-705(a)(1) (Repl. 2001) reads:
Unless otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders, but in no event shall a quorum consist of less than one-third (1/3) of the shares entitled to vote at the meeting.
The statute permits a deviation from the “majority of shares” rule only if so provided in the articles of incorporation. In the case at bar, there is no evidence that the corporation’s articles of incorporation, as opposed to its bylaws, defined a quorum. Arkansas’s corporate statutes and corporation law generally make a clear distinction between articles of incorporation and bylaws. Articles of incorporation are set forth by the original incorporators, Ark. Code Ann. § 4-26-202 (Repl. 2001), and may only be amended by a vote of two-thirds of the shares entitled to vote. See Ark. Code Ann. § 4-26-302 (Repl. 2001). Bylaws, however, are to be adopted by the board of directors and may be amended by a majority of board members. Ark. Code Ann. § 4-26-809 (Repl. 2001). Further, bylaws are not to contain provisions inconsistent with the articles of incorporation. See Ark. Code Ann. § 4-26-809(a)(3) (Repl. 2001). The legislature has obviously determined that the quorum requirement for shareholders’ meetings is of such importance that its legal definition may only be altered in the articles of incorporation, i.e., by the original incorporators or by a two-thirds vote of the shareholders. Further, it is generally recognized that, when a statute commands that a provision governing shareholder rights be set out in the certificate of incorporation but the provision is not so set out, a bylaw that purports to regulate the shareholder rights is void. See 8 William Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 4190 at 775 (Rev. ed. 2001); see also Roach v. Bynum, 403 So. 2d 187 (Ala. 1981), and cases cited therein. Moreover, if the legislature had intended to allow corporate bylaws to alter the statutory quorum requirement it could have done so. See, e.g., Ark. Code Ann. § 4-26-806 (Repl. 2001) (providing that a majority of directors constitutes a quorum “unless a greater number is required by the articles of incorporation or the bylaws.”) (Emphasis added.)
Because appellant and his mother held only fifty percent of the corporate shares, their presence at the shareholders’ meetings did not constitute a quorum under Arkansas law. Further, there was no evidence that the corporation’s articles of incorporation altered Arkansas law regarding the composition of a quorum. As a result, a quorum was not present at the shareholders’ meetings, and the trial court was correct in directing a verdict on that point.
The next point concerns the trial court’s determination, via a directed verdict, that appellee received no notice of the annual shareholders’ meetings. Arkansas Code Annotated section 4-26-703(a) (Repl. 2001) requires that written or printed notice stating the place, day, and hour of shareholders’ meetings be delivered personally or by mail not less than ten days nor more than fifty days before the meeting to each shareholder of record entitled to vote. Actions taken at a shareholders’ meeting of which absent shareholders had no notice are illegal. Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996).
Appellant does not dispute that actual notice of the meetings was not given to appellee. However, he contends that, because the bylaws provide for annual meetings to be held on the first Monday in February at the corporate offices in Clarendon, Arkansas, at 2:00 o’clock in the afternoon, appellee had what might be termed “standing notice” of the annual meetings. Appellant cites no authority nor makes any convincing argument that, if a corporation’s bylaws contain an established annual meeting date, the statutory notice requirements may be dispensed with. Further, his argument seems contrary to the general law of corporations that actual notice of annual meetings must be given to all voting shareholders. See 2 James D. Cox and Thomas Lee Hazen, Corporations § 13.13 (2d ed. 2003) (recognizing that, while it was once the prevailing view that if bylaws fixed the annual meeting date no further notice was needed, modern statutes require that notice be given to every shareholder a certain number of days before the meeting). In light of these factors, we find no reversible error on this point.
Appellant’s final challenge to the partial directed verdict concerns the trial court’s declaration that grounds existed to liquidate the corporation’s assets. Arkansas Code Annotated section 4-26-1108(a)(1) (Repl. 2001) provides that a circuit court shall have “full power” to liquidate corporate assets in an action by a shareholder when it is established:
(A) That the directors are deadlocked in the management of the corporate affairs, and the shareholders are unable to break the deadlock and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or
(B) That the acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent; or
(C) That the shareholders are deadlocked in voting power and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or
(D) That the corporate assets are being misapplied or wasted.
Appellant makes two arguments on this point. First, he contends that, in order to liquidate the corporation, all four of the above statutory factors must be proven. However, the use of the disjunctive “or” between the clauses indicates an alternative, either-or choice. See generally Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002). Thus, only one of the four factors must be established to permit liquidation.
Second, appellant argues that a jury question existed as to whether the four statutory factors were established. The initial problem with this argument is that appellant continues to premise it on the erroneous idea that all four of the statutory factors must be shown before liquidation can occur. In any event — and leaving aside the question of whether it is the province of the jury or the court to liquidate a corporation — the evidence in this case was so undisputed on at least one of the four statutory factors that a directed verdict was justified. Appellant and appellee, as equal shareholders in this family corporation, were deadlocked in their voting power. See Ark. Code Ann. § 4-26-1108(a)(1)(C). Irreparable harm to the corporation was threatened by this deadlock because, as the testimony at trial showed, appellant and appellee strongly disagreed as to whether they wanted the corporation to keep or sell the 529 acres in Sharp County, thus placing the corporation’s primary asset in limbo. Such clear evidence of grounds for liquidation distinguishes this case from Lyon v. Bolliger, 221 Ark. 423, 253 S.W.2d 773 (1952), and Coming Custom Gin Co. v. Oliver, 171 Ark. 175, 283 S.W. 977 (1926), which are cited by appellant in support of his argument (and which, in any case, were decided prior to the enactment of the above quoted liquidation statute).
For the foregoing reasons, we affirm the trial court’s grant of a partial directed verdict on the issues of quorum, notice, and grounds for liquidation.
Seventh Amendment Right to Jury Trial
As an adjunct to the above argument, appellant contends that the grant of the partial directed verdict violated his right to a trial by jury under the Seventh Amendment to the United States Constitution. However, as appellee correctly points out, the Seventh Amendment to the U.S. Constitution has not been extended to the states through the Fourteenth Amendment. See Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986), cert. denied, 481 U.S. 1069 (1987). Further, dissolution of a corporation is traditionally viewed as an equitable action. See Fletcher Cyclopedia of the Law of Private Corporations, supra at § 8034.10; 19 Am. Jur. 2d Corporations § 2375 (2d ed. 2004); 19 C.J.S. Corporations § 836 (1990). The right to a jury trial does not extend to traditionally equitable cases. See Southern Farm Bureau Cas. Ins. Co. v. Tallant, 362 Ark. 17, 207 S.W.3d 468 (2005). See generally Colclasure, supra; Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000). We therefore find no error in this regard.
Punitive Damages Instruction
At trial, appellant objected to the jury being instructed on punitive damages because no malice had been proven. An instruction for punitive damages may be given when there is evidence that a party likely knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Appellant testified at trial that he thought he had a quorum for the shareholders’ meetings; that he sold the corporate property with appellee’s approval; that, over the years, he had been solely responsible for paying insurance and property taxes on the land and maintaining the land; that he alone had been in charge of the State Highway Commission litigation, with appellee refusing to get involved; that he deposited the proceeds of the land sale into his lawyer’s trust account; and that, for tax purposes, he purchased another piece of land in Sharp County. These factors, appellant asserts, show a lack of evidence that he acted with malice.
We believe that the evidence justified the punitive-damages instruction. Appellant, in cooperation with his mother, elected himself an officer and director of the corporation without notice to appellee, who was at that time the majority shareholder and one of two living directors. Further, after selling the corporate property as “de-facto” president, which, according to attorney Abramson, indicated appellant’s knowledge that he may have been acting without authority, appellant held another shareholders’ meeting and directors’ meeting without notice to appellee, at which he and his mother approved various disbursements to him from the anticipated proceeds of the sale. Once the proceeds were in hand, he placed them not in a corporate account but in his lawyer’s trust account. Thereafter, he purported to reimburse himself for certain expenses, but the withdrawals were in suspiciously round figures and did not comport with the 1996 corporate vote on which he purportedly relied. The disbursements, as well as the land purchase in Sharp County, were made without the knowledge or input of appellee as a director and majority shareholder. From these factors, the jury might well have concluded that appellant misapplied corporate assets to his own benefit and without regard for appel-lee’s rights, and therefore he knew or ought to have known that, in the light of the surrounding circumstances, his conduct would naturally or probably result in injury, and yet he continued such conduct in reckless disregard of the consequences.
Appointment of a Receiver and Order of Liquidation
Appellant argues in his last two points that there was no reason for liquidation of the corporation and therefore no reason to appoint a receiver. It has already been sufficiently discussed in this opinion that at least one of the statutory grounds for ordering liquidation existed. That being the case, the court had the authority to appoint a receiver to supervise the sale of corporate assets. See Ark. Code Ann. § 4-26-1106(a)(10) (Repl. 2001). The authority cited by appellant in support of his argument, Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994), is noteworthy for its holding that “oppressive conduct” as grounds for liquidation under Ark. Code Ann. § 4-26-1108(a)(1)(B) does not occur simply because the complaining stockholder’s subjective expectations have not been met. However, the evidence supporting liquidation in this case extends beyond appellee’s mere disappointment in appellant’s conduct, not to mention that there also existed shareholder deadlock as a ground for liquidation under Ark. Code Ann. § 4-26-1108(a)(1)(C).
For the above reasons, we affirm on all arguments presented.
Hart and Griffen, JJ., agree.
Although both Ray Townsend and Ray Townsend Farms, Inc., are named as appellants in this case, the appeal is primarily prosecuted by Ray individually. We will therefore refer only to a singular appellant for the sake of simplicity.
The State Highway Commission had a right-of-way over the corporation’s land and in 1992 sought an injunction requiring appellant and the corporation to remove certain structures from the right-of-way. Four appeals were prosecuted in the case, with the Commission ultimately prevailing. See Townsend v. Arkansas State Highway Comm’n, 326 Ark. 731, 933 S.W.2d 389 (1996); Townsend v. Arkansas State Highway Comm’n, 322 Ark. 122, 907 S.W.2d 726 (1995); Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994); Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993). Appellant managed the litigation in these cases and employed various attorneys, including David Carruth, to represent him and the corporation.
There is no explanation in the record for the $29,000 discrepancy between the cost of the land and the value of the certificate.
All statutory references in the parties’ briefs and in this opinion are to Arkansas’s pre-1987 Business Corporations Act; the corporation in this case was formed in 1973 and has not opted, according to Abramson’s testimony, to govern itself under the new act, which went into effect in 1987. See Ark. Code Ann. §§ 4-27-101, et seq. (Repl. 2001).
See also Taylor v. Hinkle, 360 Ark. 121, 200 S.W.3d 387 (2004), suggesting that, where there is an ambiguity as to whether a quorum requires a majority of shares or a majority of shareholders, the majority of shares is the more logical choice.
Appellant makes no argument concerning any right to a jury trial under the Arkansas Constitution. | [
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John B. Robbins, Judge.
Appellant Anthony Joseph Lytle was charged with over-possession of pseudoephedrine, possession of pseudoephedrine with intent to manufacture methamphetamine, and possession of drug paraphernalia. After a jury trial, he was convicted of over-possession ofpseudoephedrine and acquitted of the remaining charges. Mr. Lytle was sentenced as a habitual offender to eleven years in prison. He now appeals, arguing that the trial court erred in failing to strike the testimony of State’s witness April Church, and that there was insufficient evidence to support the verdict. We affirm.
Because one of Mr. Lytle’s arguments is a challenge to the sufficiency of the evidence, we address that argument first, examining all of the evidence, including that which was allegedly admitted erroneously. See Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002). Pursuant to Ark. Code Ann. § 5-64-1101(a) (Supp. 2003), it is unlawful for a person to possess more than nine grams of pseudoephedrine. In deciding whether there was sufficient evidence to support appellant’s conviction for this offense, we consider only that evidence that supports the verdict and determine whether the verdict is supported by substantial evidence. See Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). 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. Id.
April Church testified that on the night ofMay 17, 2003, she was working the cash register alone at an Exxon station, and was getting ready to close the store. Mr. Lytle pulled up in a van, entered the store, and got a cup of ice. Ms. Church stated that Mr. Lytle bumped into her, that his hands were red and black and appeared burned, and that he looked very nervous, which made her nervous. After Mr. Lytle paid for the ice and exited the store, Ms. Church locked the door behind him.
Ms. Church stated that after he left the store, Mr. Lytle stayed in the parking lot looking around in the van for several minutes. She stated that he opened the sliding door and looked inside the van, and also looked underneath the front passenger seat and was “moving around.” Ms. Church continued to be nervous and called the police, and when they arrived Mr. Lytle was still there.
Officer Joe Nash testified that he observed Mr. Lytle attempt to drive off, but that he verbally effected a stop in the Exxon parking lot. Mr. Lytle got out of the van and gave Officer Nash permission to search the van. Mr. Lytle represented to Officer Nash that he was working on the van for a lady, but did not know her name. Officer Nash confirmed that the van did not belong to Mr. Lytle, and he never determined who owned it.
Officer Nash stated that during the search of the van he found a black bag in the front seat that contained ten to fifteen unused syringes. Officer Nash then walked to the back of the vehicle, and Mr. Lytle said, “Here, let me show you how to open it,” and opened the rear door. Officer Nash searched that area and found a can of Sterno, which is a heating source. Officer Nash stated that Mr. Lytle was nervous during this episode, and was cited for having an invalid driver’s license.
Officer Byron Sarter also participated in the search of the van at the Exxon station. Officer Sarter found a container under the front passenger’s seat that was visible when looking into the van through the side sliding door. The container was wrapped in duct tape, and Mr. Lytle asked, “You want me to open it for you?” Officer Sarter opened it himself, and it contained some coffee filters and some one-by-two-inch baggies. The container also contained a clear plastic bag of a powdery white substance. The white substance was taken to the crime lab, and it tested positive for pseudoephedrine and weighed 63.279 grams.
Investigator Brent Reeves testified about how methamphetamine is manufactured, and explained that pseudoephedrine, coffee filters, and a heat source are necessary elements. He further explained how methamphetamine may be injected using a syringe. Investigator Reeves indicated that when illegal drugs or precursors are transported, they are always hidden in containers, and that in such cases the person transporting the contraband seldom owns the vehicle.
Mr. Lytle and his fiancee testified for the defense. Both witnesses stated that on the day of his arrest she dropped him off at a house to repair a van owned by Angie Lewis. Mr. Lytle stated that he was fixing a broken fan, and then drove the van to the convenience store to get a drink and cigarettes, and to call his fiancee to pick him up. Mr. Lytle denied knowledge of any of the suspected contraband, and stated that had he known it was in the van he would not have consented to a search.
We first address Mr. Lytle’s argument that there was no substantial evidence that he possessed the sixty-three grams of pseudoephedrine. Mr. Lytle notes that the van did not belong to him, and further notes that the pseudoephedrine found in the container was not visible until the container was opened. Under these circumstances, he asserts that there was no evidence that he possessed the contraband or even knew it was there.
It is not necessary for the State to prove literal physical possession of contraband in order to prove possession; possession of contraband can be proven by constructive possession, which is the control or right to control the contraband. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In order to prove constructive possession, the State must establish beyond a reasonable doubt that the defendant exercised care, control, and management over the contraband. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Constructive possession may be established by circumstantial evidence if it indicates guilt and excludes every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990).
We hold that there was substantial evidence that Mr. Lytle constructively possessed the pseudoephedrine. In Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002), the supreme court held that a single occupant in a borrowed car is only subject to the general inquiry for constructive possession, without any inquiry into the elements for joint occupancy. An accused’s suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Id.
In this case Mr. Lytle was alone and in control of the van, and the pseudoephedrine was found under the front passenger’s seat, where Ms. Church saw him looking and “moving around” just minutes earlier. During the search, Officer Sarter observed Mr. Lytle to be very nervous and upset, and sweating profusely. Mr. Lytle gave permission to search, and during the search he showed Officer Nash how to open the back door, and tried to help Officer Sarter open the container containing the pseudoephedrine. And while the car did not belong to Mr. Lytle and the contraband was concealed, there was testimony that this is a common scenario in the drug trade. The jury was not required to give credit to the testimony of the defense witnesses, particularly that of Mr. Lytle himself, because he was the person most interested in the outcome of the trial. See Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). There was clearly sufficient evidence of Mr. Lytle’s control over the contraband.
Mr. Lytle’s remaining argument is that the trial court erred in failing to strike the testimony of Ms. Church. During cross-examination, Ms. Church was questioned about whether she gave a written statement to the police, and she replied:
I previously gave a statement to law enforcement officers about this incident. I gave it that night at the scene. I don’t remember if this was a written statement or if I gave it orally to the officer at the scene. I did not go to the sheriffs office for any reason that night. When I spoke to the officers it was there at the store, both inside the store and outside of the store. I’m pretty sure I wrote something down as to a statement and I signed it. I remember writing something down. I can’t remember the name of who I gave it to[.]
Mr. Lytle’s counsel stated, “I believe that now that she’s testified I’m entitled to any summary or synopsis that law enforcement has if [the prosecutor] can make arrangements for that.” The prosecutor responded that the only two officers on the scene that night were Officers Nash and Sartor, and that he did not have any written statement. After all of the remaining witnesses for the State testified and the State rested, and Mr. Lytle’s motions for directed verdict were denied, he made a motion to strike Ms. Church’s testimony and instruct the jury to disregard it. The motion was premised on the fact that the witness had made a prior statement that was not provided to the defense.
The trial court denied Mr. Lytle’s motion, and he now argues that the disputed testimony should have been stricken pursuant to Ark. Code Ann. § 16-89-115 (Supp. 2003), which provides in pertinent part:
(b) 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 examination and use.
(d) If the state elects not to comply with an order of the court under subsection (b) or (c) of this section to deliver to the defendant any statement, or portion thereof, as the court may direct, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
Subsection (e) provides that a “statement” under this section includes a “written statement made by the witness and signed or otherwise approved or adopted by him[.]” Mr. Lytle asserts that no explanation was given by the State for failing to produce the written statement, and that the trial court should have granted his motion to strike the testimony.
We find no error in the trial court’s refusal to strike Ms. Church’s testimony. As an initial matter, we are unable to deduce from the record whether a written statement ever existed. While Ms. Church indicated she gave a written statement, Officer Nash testified, “Ms. Church didn’t write any statement,” and Officer Sarter testified, “I don’t believe I had any contact with her.” Officer Sarter indicated that he never received any written statement. Moreover, the prosecutor represented that he did not have a statement in his possession. Mr. Lytle did not ask the trial court to resolve the conflicting testimony, and it was his burden to bring up a record sufficient to demonstrate error. See Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). From the record before us we are unable to ascertain whether Ark. Code Ann. § 16-89-115 (Supp. 2003) is even applicable.
Even were we to assume that a written statement was in the State’s possession, Mr. Lytle failed to make the timely and appropriate objections necessary to preserve this issue for review. In Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982), the supreme court held that an issue must be presented in a timely and appropriate manner. In that case, the appellant waited until after both sides rested, and then requested to read to the jury a written prior statement given by one of the State’s witnesses, but not disclosed by the State. The same statutory provision was at issue in that case, and the supreme court held that there was no error by the trial court in refusing the relief requested in part because “both sides had rested, and appellant had known of the error for a day before he informed the trial judge and requested corrective action.”
In the case at bar, Mr. Lytle indicated that he was entitled to the statement during cross-examination of Ms. Church, but he never received a ruling on any motion and the trial court never ordered the State to produce it. By the time Mr. Lytle moved to strike Ms. Church’s testimony, any request for corrective action was untimely because it was not made at the first opportunity, but rather after the State rested its case. Moreover, at no time was there any basis to grant a motion to strike testimony, given that the State had not been ordered to produce the statement, and thus did not elect not to comply with any order as contemplated by subsection (d) of the statute. For these reasons, we find no merit to Mr. Lytle’s argument that the trial court erred in failing to strike the witness’s testimony.
Affirmed.
Neal, Crabtree, and Roaf, JJ., agree.
Hart and Griffen, JJ., dissent. | [
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Wendell L. Griffen, Judge.
Roy O. Breedlove has appealed from his conviction of sexual abuse in the first degree. For reversal, appellant argues that the trial court erred by denying his motion for a directed verdict and his motions for mistrial. We disagree and, therefore, affirm.
Breedlove was convicted of first-degree sexual abuse pursuant to Arkansas Code Annotated § 5-14-108(a)(4) (Repl. 1997). At the close of the State’s evidence, Breedlove moved for a directed verdict on the ground that the State failed to prove that there was sexual gratification by sexual contact with the victim. The trial court denied Breedlove’s motion. Breedlove renewed his motion at the close of all the evidence. This motion was also denied.
On appeal, Breedlove argues that the trial court erred by denying his motion for a directed verdict because there was insufficient evidence to support a conviction of first-degree sexual abuse. A motion for a directed verdict is a challenge to the sufficiency of the evidence. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). On appeal, this court reviews the evidence in a fight most favorable to the appellee, and affirms if substantial evidence supports the jury verdict, and only evidence supporting the guilty verdict need be considered. Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995).
As mentioned earlier, Breedlove moved for a directed verdict on the ground that the State failed to prove sexual gratification by sexual contact pursuant to Ark. Code Ann. § 5-14-108(a)(4) (Repl. 1997). Breedlove based this motion on the fact that there was no testimony presented by the State as to Breed-love’s demeanor or actions. However, on appeal, Breedlove argues that his motion should have been granted because the witnesses, particularly the six-year-old victim, were not credible and their testimony was insufficient to support the charge of first-degree sexual abuse. In fact, Breedlove has not raised the issue concerning sexual gratification by sexual contact on appeal. The issues appellant raises on appeal were not properly preserved for review because he did not present those arguments to the trial court, and we do not consider arguments raised for the first time on appeal. See Weaver v. State, 56 Ark. App. 104, 939 S.W.2d 316 (1997).
Next, Breedlove argues that the trial court erred by denying his motion for a mistrial because he was brought into the courtroom in view of the jury panel in handcuffs. Prior to jury selection, Breedlove moved for a mistrial on the ground that he was prejudiced because he was brought into the courtroom in cuffs in front of the jury panel. This argument, however, is unpersuasive.
A mistrial is a drastic remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). The trial court has wide discretion in granting or denying a motion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the complaining party. Id.
It is not prejudicial per se for a defendant to be brought into court handcuffed, and the defendant must affirmatively demonstrate prejudice. Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990). In the present case, Breedlove was briefly brought into the courtroom with cuffs during the jury-selection process. There was no verification that any of the potential jurors saw the cuffs on Breedlove. The trial court also granted Breed-love’s counsel the opportunity to ask the jury panel whether they made any kind of observation when appellant stepped in the room and whether anything they saw would affect their decision or affect their ability to be fair and impartial. Breedlove’s counsel, however, chose not to ask any questions and did not pursue the matter any further. Thus, Breedlove has failed to affirmatively demonstrate prejudice.
Last, Breedlove contends that the trial court erred by denying his second motion for a mistrial because a news report made references to his prior conviction by a military tribunal that had been found to be inadmissible by the trial court after a suppression hearing. This contention is unpersuasive.
Before the jury was sworn in, the judge recessed court for the evening. That evening, Channel 4 News reported on the case and made inaccurate statements concerning Breedlove’s prior conviction. The news report indicated that Breedlove had previously been convicted of raping and sodomizing his own children and that he received a twenty-two-year sentence and served six or seven years when Breedlove had, instead, been convicted of attempted rape and indecent acts, and sodomy, but not rape. He received a ten-year prison sentence and served six years.
The next morning, Breedlove’s counsel again moved for mistrial and argued that the jury was tainted because the news report, which was likely seen by members of the jury, mentioned his prior conviction, which was inadmissible during trial, and the news report misstated certain other facts about appellant.
In response to Breedlove’s second motion for a mistrial, the trial judge asked the jurors if any of them had seen the news report. Seven jurors acknowledged that they had seen some or all of the report. The trial judge then interviewed each juror individually, and excused one juror who indicated that the news report would affect his ability to consider the evidence impartially.
After returning to the courtroom, the trial judge verified that, with the exception of the one excused juror, the other jurors, who had seen the report or some of it, could disregard what they saw or heard and consider the evidence as presented. After adding an alternate juror to the panel, the judge then stated:
And let me again admonish each of you, if you have seen the report or a portion of it, you’re admonished to disregard that report and not consider that, but to consider only the evidence that is presented here at this trial in arriving at your verdict. And you are also admonished not to discuss anything that may have been seen or heard in that report or broadcast during your deliberations in the jury room. But to consider and deliberate only on the evidence that’s presented here and can each and will each of you do that? Okay, thank you.
The proper test that the court must employ when sorting through juror-bias issues is whether the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence in court; because the qualification of a juror is within the sound discretion of the court, we will not reverse the trial court unless the appellant demonstrates an abuse of discretion. See Randolph v. ER Arkansas, P.A., 325 Ark. 373, 925 S.W.2d 160 (1996). By questioning each juror who had seen the news report, individually, and then admonishing the panel as a whole, the trial judge followed the proper procedure for dealing with this issue. Breedlove was not prejudiced. Therefore, the trial court did not err in denying Breedlove’s second motion for a mistrial.
Affirmed.
Stroud and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
David Hooker and Ottie Hooker, pro se litigants who are son and father respectively, appeal from a chancery court order dismissing with prejudice their complaint for declaratory judgment against Producers Tractor Co. (Producers), Deere Credit Services Inc. (Deere Credit), and John Deere Co. (John Deere). The Hookers raise seven points on appeal. They allege that the trial court erred in 1) denying them a jury trial, 2) denying them assistance of counsel (two non-lawyers), 3) denying their right to contract under a power of attorney (given to the same two non-lawyers), 4) improperly converting appellees’ motions to dismiss into summary judgment while discovery was yet pending, 5) failing to follow the rules for summary judgment, and 6,7) dismissing the complaint for lack of jurisdiction and improper service upon appellees. We find no merit to any of these points and hold that the trial court properly dismissed the complaint with prejudice.
On January 23, 1997, the Hookers filed a complaint for declaratory judgment against the appellees in St. Francis County Chancery Court, seeking declaratory, injunctive, and compensatory relief regarding contracts executed by Ottie Hooker for the purchase of three pieces of farm equipment, a combine, tractor, and grain drill, from John Deere. When the complaint was filed, there was pending in St. Francis Chancery Court Case No. E-94-104, styled Ottie Hooker v. John Deere Credit and Producers Tractor Co., involving the same contracts and equipment. Ottie Hooker’s two attempts to appeal from interim orders entered in the 1994 case had been dismissed by the supreme court and by this court.
The Hookers’ 1997 suit in essence complained that the chancellor had ordered sequestration of the equipment in case number E_94_104 on May 6, 1996, sought to restrain and enjoin any further action in the 1994 case with regard to the equipment, and sought damages for the alleged loss of use of the equipment since its repossession by Producers in 1993. The complaint alleged that the Hookers had suffered “irreparable harm” in case number E-94-104 and that they “possessed no other adequate or speedy remedy at law in stopping the proceedings in case number E-94-104.” The Hookers further asserted that “we stand a chance of losing our property if those proceedings continue with no assurance that the plaintiffs’ property will not be taken and the necessity of doing an appeal in E-94-104.” The Hookers further demanded a common-law jury trial and asked that the case not be assigned to Judge Kathleen Bell, the chancellor presiding over E-94-104.
On February 19, 1997, Deere Credit and John Deere filed a motion to dismiss alleging ineffective service of process and that the allegations in the complaint arose out of the same transaction or occurrence involved in E-94-104. Producers filed a motion to dismiss on the same grounds and also moved for a protective order suspending its discovery obligations until after a ruling on its motion to dismiss.
At the hearing held on March 27, 1997, Producers argued that the case should be dismissed under Ark. R. Civ. P. 12(b)(8) because of the prior action pending between the same parties arising out of the same transaction and due to defective service because James H. Hooker, who served the complaint, was neither a duly-appointed process server, sheriff, nor deputy. Deere Credit and John Deere adopted Producer’s argument regarding service of process and also contended that the case should be dismissed because it involved the same parties and arose out of the same transactions and occurrence as E-94-104. The additional plaintiff and defendant in the 1997 action, David Hooker and John Deere, were characterized by appellees as “surplus” parties, and the 1997 action was characterized as an attempt by the Hookers to appeal from unfavorable orders entered in the 1994 case.
On April 22, 1997, eighty-nine days after the complaint was filed, Judge Bell dismissed the complaint with prejudice based on lack of subject-matter jurisdiction due to the pending 1994 case and because James Hooker was not authorized to serve process. On May 2, 1997, the Hookers filed a motion for reconsideration of the dismissal. The record does not show that this motion was ruled upon by the court. On June 27, 1997, the Hookers thus timely filed a notice of appeal.
As a preliminary matter, we first note that the Hookers’ abstract is flagrantly deficient. Although the concurring judge would affirm this case based upon the Hookers’ violation of Ark. Sup. Ct. & Ct. of App. R. 4-2, we do not agree that this case may be disposed of in that manner. Appellees Deere Credit and John Deere have provided a twenty-four page supplemental abstract, including the complaint, motions to dismiss, and partial transcript of the hearing on the motions. They have also included the dismissal order as an addendum to their brief. See Ark. Sup. Ct. & Ct. of App. R. 4-2(a)(8). The Hookers have adequately abstracted their notice of appeal and we thus have a sufficient record before us to reach at least some of the issues they raise.
The Hookers’arguments, while not models of style, are understandable, and the authorities cited by them are not wholly inappropriate to the issue. Where the appellee cures the appellant’s deficient abstract by providing a supplemental abstract, we consider the merits of the appeal. See Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187 (1998). In this regard, Deere Credit and John Deere have also requested an award of costs, including reasonable attorney fees, for the preparation of the supplemental abstract. As the supplementation was necessary for us to reach an understanding of this appeal, we grant the request upon appellees’ providing a statement of cost of the supplemental abstract and the amount of time devoted to its preparation, as required by Ark. S. Ct. & Ct. of App. R. 4-2(b)(1).
We first consider the Hookers’ two related points pertaining to the denial of their right to counsel and denial of their right to contract, pursuant to a durable power of attorney, with the same two non-lawyer counsel. At the hearing on the appellees’ motions to dismiss, the trial court inquired of David Hooker, who was proceeding pro se, whether the two persons sitting at counsel table with him were licensed attorneys. After being advised that they were not, the trial court had them removed to the spectator’s section of the court room. Hooker objected and asserted that the trial court was denying him “assistance of counsel” relying on several United States Supreme Court and federal district court cases upon the durable power of attorney given to the two non-lawyers. The Hookers make the same arguments on appeal.
The Hookers’ argument that they were denied assistance of counsel in violation of their right to due process is merit-less. They attempt to distinguish “assistance” of counsel from “representation.” Arkansas Code Annotated Section 16-22-206 (Repl. 1994) provides that it is illegal to practice law without a license. In Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987), the chancellor refused to allow a non-lawyer to sit at counsel table with Jones and assist him during a trial. The supreme court summarily disposed of the identical argument now made by the Hookers by stating “[0]nly licensed attorneys can represent another person in court.”
The Hookers’ resort to federal decisions to support their argument is also unavailing. Only U.S. v. Stockheimer, 385 F.Supp. 979 (W.D. Wis. 1974), has even so much as a semblance of relevancy. There the district court held that where a pro se defendant had effectively waived the right to assistance of counsel and had chosen to defend himself, he would not be forbidden the assistance of two disbarred lawyers in a criminal proceeding. However, the court in Stockheimer declined to grant the defendant’s motion to allow the unlicensed lawyers to act as counsel and spokesmen, and stated that “in the absence of any constitutional or federal statutory provision compelling me to either forbid or not to forbid [the] assistance, I may exercise my discretion in the matter.” This case is obviously neither controlling nor even persuasive authority for this court to disregard our precedent and resolve this issue in the Hookers’ favor.
We do not reach the merits of the argument pertaining to the denial of the right to contract, because the Hookers have failed to abstract the power of attorney. It is the appellant’s duty to bring up a sufficient record on appeal. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The necessity of abstracting the material parts of the record, including documents, as are necessary to an understanding of all questions presented in an appeal has been stated time and time again. See Ark. Sup. Ct. and Ct. of App. R. 4-2(b)(2); see e.g., Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991).
We next consider whether the trial court properly dismissed the Hookers’ action, because we need not reach the remaining issues'concerning summary judgment and denial of a jury trial if we conclude that the dismissal was proper. In this regard, we agree with appellees that the Hookers’ complaint standing alone made it crystal clear that the purpose of the declaratory-judgment action was to thwart the progress of the earlier action filed by Ottie Hooker against two of the three appellees. The complaint made numerous references to the pending action by docket number and baldly asserted that the Hookers wished to enjoin further proceedings in the 1994 case.
We find ample authority for dismissal of such an action. In his treatise, Arkansas Civil Practice and Procedure § 33-2 (2d ed. 1993), Justice David Newbern states,
[T]he declaratory judgment procedure is intended to supplement rather than supersede ordinary actions, and if the question sought to be raised in a declaratory judgment action is already the subject of a pending case a declaratory judgment should be dismissed.
In City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958), the supreme court reversed a chancellor’s issuance of a temporary restraining order pursuant to a declaratory-judgment action filed by disgruntled taxpayers, while a civil action was already pending in the justice of the peace court for collection of the tax. The court stated:
[w]e condemn the practice of a person after being charged with violating the law . . . then asking for a declaratory judgment in an independent cause, with the result that the two cases involving the same subject matter are pending at the 'same time. If such were permitted, it would cast an unnecessary burden on the courts and the law enforcement authorities .... [W]hen . . . another action between the same parties, in which all issues could be determined is actually pending at the time of the commencement of the action for declaratory judgment, the court abuses its discretion when it entertains jurisdiction.
(Citations omitted.) See also Robinson v. Morgan, 228 Ark. 1091, 312 S.W.2d 329 (1958).
In Mid-State Constr. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968), the supreme court held that a circuit court was without jurisdiction to entertain the question of a deceased worker’s status as an employee in a declaratory-judgment action.filed while the same question was already at issue in a case pending before the Workmen’s Compensation Commission. Also, in Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988), the court affirmed a circuit court’s dismissal of a declaratory-judgment action seeking a determination of whether legislation creating the Corning Municipal Court was unconstitutional, because the- appellant was raising the same issue in a pending appeal to circuit court from a nolo contendere plea of DWI entered in the municipal court.
These authorities lead us to the inescapable conclusion that, notwithstanding the additional parties, the trial court correcdy dismissed the Hookers’ declaratory-judgment action. As the appellees so aptly state, the allegations and request for relief in their complaint doomed the Hookers’ 1997 case, because a trial court certainly does not have the power to exercise appellate jurisdiction over itself. Indeed, the supreme court has defined jurisdiction as “the power to hear and determine the subject matter in controversy between the parties to the suit.” Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998).
While it is clear that the Hookers are not happy with the way matters have progressed in the 1994 case, the appellees surely can be no less pleased to find themselves embroiled in litigation over equipment repossessed some five years ago. Doubtless we would all be better served if the Hookers, with the aid of this equipment, were busily engaged in what they apparently do very well — farming their land and providing nourishment and sustenance for their fellow man.
However, in seeking to do so, they must follow our rules. As the concurring justice in State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), pointed out:
[t]he rules of practice and procedure constitute the foundation supporting our system based upon the rule of law. In order for the system to work in an efficient manner, it is imperative that the rules under which litigants and their attorneys operate be, as nearly as possible, definite, certain, and uniform in application.
Id. (Turner, J., concurring). The Hookers are obliged, as are we all, to abide by the rule of law. They are not free to pick and choose from among our rules and laws those provisions which they will follow and others which they will disregard.
Affirmed.
Neal, J., agrees.
Meads, J., concurs. | [
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Terry Crabtree, Judge.
At a bench trial, the Pulaski County Circuit Court convicted the appellant, Miles Thomason, of possession of a controlled substance with intent to deliver and of the simultaneous possession of drugs and a firearm. Appellant was sentenced to a total of ten years in the Arkansas Department of Correction. On appeal, appellant argues that his convictions are not supported by sufficient evidence. We affirm in part and reverse and dismiss in part.
Appellant made timely directed-verdict motions below; however, the circuit judge denied them. Motions for directed verdict are challenges to the sufficiency of the evidence. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Garner v. State, 35 Ark. 82, 131 S.W.3d 734 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).
For appellant’s first point on appeal, he challenges the sufficiency of the evidence supporting his conviction for possession of a controlled substance with intent to deliver marijuana. It is unlawful for anyone to possess marijuana with intent to deliver. See Ark. Code Ann. § 5-64-401 (a) (Supp. 2003). Intent, however, can seldom be proved by direct evidence and must be inferred from facts and circumstances. Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982). The fact that evidence is circumstan tial does not render it insubstantial. Conley v. State, 308 Ark. 72, 821 S.W.2d 783 (1992). As such, a jury may consider possession, along with any other pertinent fact, in determining whether an appellant possessed the specific intent to sell or deliver a controlled substance. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978).
Officer Andy Moore, a thirteen-year veteran of the Little Rock Police Department with nine years of specialized drug training with the DEA, testified at trial that he responded to appellant’s home on May 6, 2003. Several citizens previously reported appellant outside his home firing a gun into the air. Upon appellant’s consent, Officer Andy Moore searched the premises. During the course of his search, Moore discovered ten plastic bags of marijuana, totaling 26.2 grams, in the room that appellant indicated was his bedroom. Each individual baggy found in appellant’s bedroom weighed approximately 2.6 to 2.7 grams, which according to the officer, is the common weight of a “nickel” bag for purposes of resale.
Additionally, Officer Moore’s search uncovered an unloaded Mac-90 (semi-automatic rifle) under the sofa in appellant’s living room and an unloaded twelve-gauge shotgun under the mattress of the unoccupied middle bedroom. Another officer found a .30 caliber rifle and a Ruger 22 in a storage shed in the backyard of appellant’s property. Further, twenty-nine rounds of ammunition were found in the storage shed of the same caliber as the Mac-90 firearm.
We hold that the foregoing evidence is sufficient to support appellant’s conviction for possession of marijuana with intent to deliver. The officers found ten individual “nickel” bags of marijuana in appellant’s bedroom whose total weight amounted to slightly less than the presumptive weight (one ounce) for possession with intent to deliver. In some instances, where narcotics are packaged for individual sale, a conviction for possession with the intent to deliver may be sustained even when the weight of the contraband is less than the presumptive amount. See Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989); Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). In Hurvey, supra, the supreme court upheld Hurvey’s conviction for possession of cocaine with intent to deliver based upon evidence that Hurvey carried only five individual packages of cocaine.
In the case at bar, appellant had twice as many packages as Hurvey, and appellant was in possession of four firearms. It has been recognized that a logical connection exists between the possession of drugs and firearms. Young v. State, 77 Ark. App. 245, 72 S.W.3d 245 (2002); see Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). Furthermore, evidence of appellant’s possession of a firearm is relevant to prove intent to deliver. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001); Young, supra. See Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); Hendricks v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). As such, we believe that sufficient evidence supports appellant’s conviction for possession of marijuana with intent to deliver.
For appellant’s second point on appeal, he maintains that sufficient evidence does not support his conviction for the simultaneous possession of drugs and firearms pursuant to Arkansas Code Annotated section 5-74-106 (Repl. 2002). In order to sustain a conviction for simultaneous possession of drugs and firearms, the State must show possession of a firearm by the accused and a nexus between the firearms and the drugs. See Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003). It is a defense to a prosecution for simultaneous possession if the defendant was in his home and the firearm was not readily accessible for use. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). We have defined “readily accessible for use” to mean “for use” as a firearm and have held that “an unloaded weapon with no ammunition is not useable as a firearm.” Id. at 403, 39 S.W.3d at 16. In this instance, appellant was found in his home, and none of the firearms on his property were loaded. Only ammunition for the Mac-90 was discovered on appellant’s property; it was in a storage shed in his backyard. Therefore, we cannot say that appellant was in possession of a firearm that was readily accessible for use. Consequently, we must reverse and dismiss appellant’s conviction for simultaneous possession of drugs and firearms.
Affirmed in part; reversed and dismissed in part.
Pittman, C.J., Gladwin & Vaught, JJ., agree.
Bird and Baker, JJ., concurring in part; dissenting in part. | [
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Andree Layton Roaf, Judge.
Appellant, Casey M. Til-son, received $1274 in unemployment insurance benefits to which she was not entitled, without fault on her part. The overpayment occurred when the Arkansas Employment Security Department (the Department) failed to timely investigate employment information she accurately and timely reported. The Board of Review affirmed the Department and the Appeal Tribunal’s decision holding Tilson liable to repay the overpaid benefits on the finding that, although Tilson received benefits to which she was not entitled without fault on her part, it would not violate equity and good conscience to require repayment of the overpaid amount. We reverse and dismiss.
In its opinion the Board stated that Tilson’s family consists of Tilson, her spouse, and two daughters, ages two and six, that the sole family income is the spouse’s $300 per week net income ($1300 per month) and that the family has “recurring monthly expenditures” ofbetween $1000 and $1100. The Board concluded that the record established that Tilson’s household income was more than sufficient to meet normal recurring monthly expenses and that it would not violate equity and good conscience to require repayment.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Trigg v. Director, 72 Ark. App. 266, 34 S.W.3d 783 (2000); Hunt v. Director, 57 Ark. App. 152, 942 S.W.2d 873 (1997). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. See Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. See Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
The relevant code section, Ark. Code Ann. § 11-10-532(b)(1) (2002), is as follows:
(b)(1)(A) If the director finds that any person has received any amount as benefits under this chapter to which he or she was not entided by reasons other than fraud, willful misrepresentation, or willful nondisclosure of facts, the person shall be liable to repay the amount to the fund.
(B) In lieu of requiring the repayment, the director, on and after July 1, 1999, may recover the amount by deduction of any future benefits payable to the person under this chapter unless the director finds that the overpayment was received without fault on the part of the recipient and that its recovery would be against equity and good conscience.
In determining whether repayment would violate the standard of equity and good conscience, the fact finder may consider such matters as whether claimant received notice that he would be liable to repay any overpayments, whether the claimant received only normal unemployment benefits or some extra duplicated benefits, whether the claimant changed his position in reliance upon the receipt of the benefits, the cause of the overpayment, and whether recovery of the overpayment would impose extraordinary hardship on the claimant. Vaughn v. Everett, 5 Ark. App. 149, 633 S.W.2d 401 (1982). The scope of ourjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it; we may not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determinations upon the same evidence. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). This is not to say, however, that our function on appeal is merely to ratify whatever decision is made by the Board. It is essential that the Board’s findings of fact be supported by substantial evidence upon which a particular conclusion could reasonably have been reached. We are not at liberty to ignore our responsibility to determine whether the standard of review has been met. Id.
Here, the Board determined that it would not impose a substantial hardship to require repayment, and that the repayment would not violate equity and good conscience. Without departing from the limitations placed on the scope of our review, we cannot see how the Board could reasonably reach its decision based upon the evidence that was before it. While the Board has adopted the two total sums for monthly income and expenses found by the Appeal Tribunal, the evidence reflected that for two of the major expense items, Tilson provided amounts that were “minimum.” She testified that her current electric bill was $115 but that it was over $300 monthly in the winter, and that food for the family was $200 “minimum.” Moreover, there was no consideration given for repayment of the preexisting debts testified to by Tilson. We distinguish this case from Trigg v. Director, supra, in which this court affirmed the Board of Review’s decision requiring repayment of $1155 in benefits where the claimant and his spouse had substantially less monthly income than monthly expenses. However, we noted that Trigg had $14,000 in savings, citing Whitford v. Daniels, 263 Ark. 222, 563 S.W.2d 469 (1978), in which the supreme court upheld the decision requiring repayment based upon the claimant’s testimony that he had $4000 in savings, a factor not present in the case before us. Because we are unable to reconcile the Board’s findings of expenditures of only $1000 to $1100 with the facts in the record, and there was no evidence that Tilson had any savings, we conclude that the Board’s decision in this case is not supported by substantial evidence.
Reversed and Dismissed.
Neal and Crabtree, JJ., agree.
We note that the Tilson’s income of $15,600 annually is substantially “below the U.S. Census Department’s 2004 poverty threshold for a family of four, which is $19,157. United States Census Bureau Poverty Thresholds 2004 at www.census.gov/hhes/poverty/ threshld/thresh04.html. Tilson’s income is also substantially below the poverty guidelines set out by the United States Department of Health and Housing Services for 2004. HHS Poverty Guidelines 60 Fed. Reg. 7336-38 (Feb. 13,2004). | [
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Wendell L. Griffen, Judge.
Sharon Ann Stone appeals from a Workers’ Compensation Commission’s decision denying her benefits. She argues that the Commission erred in finding that she was not entitled to additional medical treatment and that she was not entitled to temporary-total disability benefits. Because the Commission failed to consider surgical and post-surgical reports that appear to be material to the claim, we reverse and remand for additional findings.
Appellant worked as a manager for Dollar General Stores (“Dollar General”). She was injured on February 28, 2002, when two men robbed her after she closed the store. Appellant testified that she had taken money to the bank and returned to the store to do some ordering. After locking the store for the evening, someone grabbed appellant by her neck. Another person was on her side. The man who grabbed her choked her and then dragged her by her neck to the side of the building. The two men demanded money and hit her on the right side of her head. After appellant told the men that she had gone to the bank, the men searched her and took $103 that she had been reimbursed from Dollar General. Appellant went next door to T.J.’s Quick Stop, where her daughters worked, and stayed there until an ambulance arrived. She later went to Baptist Memorial Hospital in Blytheville, where she was treated and released.
Appellant went to work the next day. She talked to Becky Moore, risk manager for Dollar General. Moore offered psychological counseling, part of standard procedure for employees involved in a robbery. Appellant declined. Regarding her work that day, Stone testified:
I felt so shaken I couldn’t write, I couldn’t be out on the floor to speak to anyone, I had to stay in the back. I felt stressed and the top of my, in the top I just started with stress, I felt funny and didn’t know what was going on and four days later I went to the doctor and told the doctor I don’t know what’s going on.
Appellant complained of pain in her neck and arms and testified that she could not pick up or open boxes. In a March 3, 2003 letter, Dr. Trent Lamb, her primary care physician, opined that appellant’s injuries fit her explanation of the robbery and that a CT scan and an MRI confirmed that opinion. Appellant testified that she had no problems with her neck before the robbery. Appellant stated that she could not walk very far and that it bothered her to drive a car or turn her head very far.
Appellant testified that the robbery occurred somewhere around 9:00 or 10:00 p.m. She drove to the hospital after midnight, where she was diagnosed with a neck strain, a facial contusion, and a head injury. She saw nurse practitioner Angela McKenness on March 4, 2002, and again on April 8, 2002. At this time, Dr. Lamb ordered a CT scan of appellant’s cervical spine as well as EMG/NCV studies. Dr. Lamb reviewed the CT scan and diagnosed small disc herniations at Stone’s C5-6 and C6-7. An MRI confirmed the diagnosis. An EMG and nerve conduction studies yielded normal results. Dr. Lamb referred appellant to Dr. James Metcalf, who examined her once on May 14, 2002. Dr. Metcalf recommended continued medication and physical therapy, but did not believe that surgery was warranted. After a course of conservative treatment, which did not improve appellant’s condition, Dr. Lamb referred her to Dr. Rebecca Barrett-Tuck for a second opinion. Dr. Barrett-Tuck examined Stone on June 17, 2002, and reviewed the diagnostic studies. She diagnosed a disc rupture at appellant’s C5-6 and a disc rupture eccentric to the left at C6-7. In her notes dated June 17, 2002, Dr. Barrett-Tuck noted:
I have recommended to Mrs. Stone ACDF at C5-6 and C6-7 with plating, although I have talked to her in great detail about the fact that her symptoms really go beyond what I could ascribe to her disc raptures alone and I do not know how much relief she will get from the neck surgery. Certainly she might get complete relief but on the other hand, she may get little relief. She seems to understand. We talked about risks and complications. She has recently been found to have a piloid goiter. This was noted on the CT scan. She has an appointment with Dr. Ganong next week for evaluation. I have asked her to call and schedule her surgery when and if she is ready to proceed once she has completed her thyroid workup.
Dr. Barrett-Tuck performed an anterior cervical discectomy and fusion of C5-6 and C6-7 on August 6, 2002. The operative report stated, “A free fragment was removed from the left side of the canal.” An August 6, 2002 surgical report from the St. Bernard’s Medical Center Department of Pathology listed appellant’s diagnosis as “benign fibrillated fibro cartilagionous connective tissue consistent with herniated nucleus pulposus.” The surgery did not achieve the desired result, with appellant’s right arm remaining the same, although her left arm achieved slight improvement.
Appellant worked for and received paid medical treatment from Dollar General until about April 15, 2002, when she was fired for allegedly stealing from the store. She testified that Dollar General was doing something for a child who was in the hospital during Christmas. Appellant noted that she could not take anything out of the store without paying for it; therefore, she put the toys on a charge and the employees agreed to pay for it. She paid for the toys and had a receipt. District Manager Mark Fagan found out about this and later accused appellant of stealing from the store. After April 15, 2002, she did not contact Moore or Fagan because Fagan told her not to contact the store. She retained an attorney a week after her termination.
When questioned by the administrative law judge (ALJ), appellant testified that she was nervous for the six-week period following the robbery. The pain in her neck and upper extremities began a week after the robbery. Initially, she did not discuss the pain with her doctors because she thought it would go away. She first discussed the pain with Nurse McKenness in April 2002. Appellant also acknowledged that she sustained a prior low-back injury in late 1989 as a result of a motor vehicle accident. Dr. Barrett-Tuck treated her for her injuries.
Miles Stone, appellant’s husband, testified that he and appellant had been married for thirty-two years. Before the robbery, appellant had no neck problems. After the robbery, she complained of gradual neck and arm pain, which caused her arms and hands to shake. He went with appellant to her appointment with Dr. Metcalf. He testified that Dr. Metcalf only examined her for ten to fifteen minutes. After Mr. Stone testified, counsel for Dollar General stipulated that if called to testify, appellant’s daughters would corroborate the testimony that she did not complain of neck and upper extremity problems before the. robbery and that her condition had not changed after the surgery.
In an October 1, 2003 opinion, the ALJ found that appellant had proven entitlement to benefits for all of her cervical problems, including cervical surgery performed by Dr. Barrett-Tuck. The ALJ also found that appellant was entitled to temporary-total disability benefits from March 1, 2002, until the end of her healing period, which continued through at least March 27, 2003. The Commission reversed the ALJ, finding that appellant failed to prove that the surgery performed by Dr. Barrett-Tuck was reasonably necessary and that she failed to prove that she was entitled to temporary-total disability benefits after May 14, 2002. Specifically, the Commission found that appellant failed to show that her abnormalities were the result of being choked or dragged. While noting Dr. Lamb’s opinion that her injuries fit appellant’s explanation of the events, the Commission gave more weight to Dr. Metcalfs opinion that surgery was unnecessary. This appeal followed.
The standard of review for appeals from the Commission is well established:
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). A decision by the Workers’ Compensation Commission will not be reversed unless it is determined that fair-minded persons could not have reached the same conclusions if presented with the same facts. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). Where the Commission denies a claim because of the claimant’s failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm if its decision displays a substantial basis for the denial of relief. Rice v. Georgia-Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).
Carman v. Haworth, Inc., 74 Ark. App. 55, 59, 45 S.W.3d 408, 411 (2001). In reviewing workers’ compensation cases, this court only reviews the findings of the Commission, not those of the ALJ. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).
Appellant argues that the Commission erred in finding that she failed to prove that she was entitled to additional medical treatment after May 14, 2002, the date of Dr. Metcalfs examination. Workers’ compensation law provides that an em ployer shall provide the medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Hargis Trans. v. Chesser, 87 Ark. App. 301, 190 S.W.3d 309 (2004); Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).
Appellant identifies the opinions of Drs. Lamb and Barrett-Tuck as evidence supporting her need for additional medical benefits. Appellee relies heavily on Dr. Metcalf s opinion that no surgery was needed; however, the Commission’s opinion did not address Dr. Barrett-Tuck’s surgical report or St. Bernard’s post-surgical diagnosis. These reports may be objective evidence linking appellant’s injuries to the robbery.
It is the province of the Commission to weigh conflicting medical evidence; however, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). Because the Commission’s opinion does not address the surgical report or post-surgical diagnosis, we reverse their opinion and remand this case for additional findings. See Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003).
Reversed and remanded for additional findings.
Hart, Neal, Crabtree, and Roaf, JJ., agree.
Robbins, J., concurs.
In his opinion, the ALJ remarked, “The claimant’s termination appeared to be under extremely questionable circumstances.”
Appellant testified that she did not know about a goiter she had until it was identified in April 2002. At the time of her deposition, she was taking a thyroid replacement medication. It was the only medication she was taking at the time. The ALJ found that appellant failed to prove that Dollar General was responsible for problems related to her low-back problems, multinodular goiter and/or thyroid problems, or her carpal-tunnel syndrome. This is not an issue on appeal. | [
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Olly Neal, Judge.
This case comes to us from the Pulaski County Circuit Court, Sixth Division. Appellant, Mary Reed, appeals her conviction for intimidating a witness, a violation of Ark. Code Ann. § 5-53-109 (Repl. 1997). On appeal, appellant argues that the trial court erred in denying her motion for dismissal because there was insufficient evidence to prove that, when she threatened Yolanda Peoples on August 15,2003, she believed Peoples would be called as a witness in the future. We affirm.
The facts are these. On October 3, 2003, the State filed a two-count felony information, charging appellant with first-degree terroristic threatening and intimidating a witness. Appellant stood trial on March 8, 2004. The testimony revealed that appellant and Yolanda Peoples were acquaintances who had lived near each other for a number of years. In April 2003, Peoples witnessed appellant’s son, Richard Reed, commit murder. Peoples told appellant and her family what she saw; they told her to keep it to herself. Nevertheless, Peoples’s family advised her to contact the authorities; therefore, she made an anonymous statement to the police that she saw appellant’s son commit the murder. In May 2003, Peoples identified herself to the police but believed that her identity would be kept confidential until such time as “we got ready to go to court or near trial.” Based on Peoples’s statement, an affidavit was thereafter prepared to obtain an arrest warrant for Richard Reed. Richard Reed was subsequently arrested; he pleaded guilty to first-degree murder and received forty years’ imprisonment.
Following Richard Reed’s arrest, his family obtained a copy of the affidavit, which identified Peoples as the person having provided information to the police. Appellant and her family confronted Peoples with a copy of the affidavit, and Peoples admitted to them that she made a statement to the police. Appellant asked Peoples, “How the hell could [you] do that, because the whole time [you’ve] been sitting over [here] with [us] . . . [you’ve been] getting information, . . . and going back and telling the police [?]”
Following this confrontation, two additional incidents occurred between appellant and Peoples. First, Peoples was sitting on the porch at the home of appellant’s mother, Emma Underwood, talking to Ms. Underwood, when appellant saw Peoples at Underwood’s home and asked her mother, “How can you have this fat bitch sitting over there? She tried to send your grandson to jail[.]” Later, on August 15, Peoples was across the street at the home of her children’s grandfather, James McDowell. Peoples testified that she was in the McDowell home speaking with Patricia Small and Latosha McDowell, when appellant came into the home and sat down. Peoples testified that:
And then all the sudden, [appellant] just — she just hollered out, you know, “Mother — MF,” saying they saw somebody killed someone, they know they didn’t see anything. And I looked at Patricia, Patricia looked at me. We didn’t say nothing, just kept on talking.
And she started —just continued to making comments, and I finally got tired. And I told her, I said, “Mary, look,” I said, “you knew from day one what I told you,” I said, “because I came and I told you and I came and I told your momma and your sister and your husband what happened.” I said, “You had no problems with it, you know. You were cool with it” — as long as she didn’t, you know, at first when she didn’t know that I had talked to the police, she was fine with it. But when she found out that I talked to the police, I mean, I had been catching hell ever since from —
She made threats that day. She told me that she was going to — she was going to kill me, she was going to burn down my house, that I had two boys and a girl, that she could do something bad — she said, “Remember, you got two boys and a girl that I can do something bad to.”
(Emphasis added.)
After the State rested its case-in-chief, the defense moved for dismissal. The trial court denied the motion. Thereafter, the defense renewed its motion after it rested its case. The court dismissed the charge of first-degree terroristic threatening; however, the court denied the defense’s renewed motion to dismiss the charge of intimidating a witness. Subsequently, appellant was found guilty of intimidating a witness and sentenced to ten years’ imprisonment, with nine years suspended. This appeal followed.
A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Stewart v. State, 89 Ark. App. 86, 200 S.W.3d 465 (2004). The evidence is reviewed in the light most favorable to the appellee and the conviction is affirmed if there is substantial evidence to support the verdict. Id. Substantial evidence is that which will with reasonable certainty compel a conclusion one way or another without resorting to speculation or conjecture. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). On review, this court must determine whether the fact finder resorted to speculation and conjecture in reaching its verdict. Stewart v. State, supra. It is in the province of the fact finder to determine the weight of the evidence and the credibility of witnesses. Id.
Under Arkansas Code Annotated section 5 — 53—109(a) (1—3) (Repl. 1997), a person commits the offense of intimidating a witness if she threatens a witness or a person she believes may be called as a witness with the purpose of (1) influencing the testimony of that person; (2) inducing that person to avoid legal process summoning him to testify; or (3) inducing that person to absent himself from an official proceeding to which he has been legally summoned. A witness is “any person who is holding or plans to hold himself available to give testimony at an official proceeding.” Ark. Code Ann. § 5-53-101 (a)(7)(B) (Repl. 1997). Threat is defined as “a menace, however communicated, to use physical force against any person; or harm substantially any person with respect to his property, safety, business, calling, career, financial condition, reputation, or personal relationship.” Ark. Code Ann. § 5-53-101(a)(6) (Repl. 1997).
When viewed in the light most favorable to the State, the evidence supports appellant’s conviction. Appellant threatened to kill Peoples, burn her house down, and harm her children. Appellant knew that Peoples could be called as a witness at her son’s murder trial because she confronted Peoples with the affidavit, which identified Peoples as a witness to the murder. Thereafter, appellant expressed her anger towards Peoples on several occasions, informing her that, “Remember, you got two boys and a girl that I can do something bad to.” The trial court, sitting as the finder of fact, could find such a statement to mean that appellant threatened Peoples, whom she knew would be testifying at her son’s murder trial, with the purpose of influencing her testimony or inducing her to not testify. Therefore, as substantial evidence supports the conviction, we affirm.
Affirmed.
Robbins and Glover, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Frankie Irvin was charged as a habitual offender with the offenses of aggravated robbery, theft of property, and attempted capital murder. The murder charge was apparently dropped, and a date was set for trial by jury on the remaining two charges. Mr. Irvin’s retained counsel, A. Wayne Davis, failed to appear in Desha County Circuit Court on the trial date. At a hearing in chambers with Mr. Irvin and two prosecuting attorneys, the trial court stated that Mr. Davis was not excused even though the court had been told that he had been fired and he had faxed the court a motion to withdraw the night before trial. The court also stated that it would issue an order for Mr. Davis to show cause why he should not be held in contempt. Mr. Irvin then told the court he needed “someone to represent me that will represent me in my best interest.” The court treated his request as a motion for a continuance and denied the motion. Mr. Irvin’s trial without counsel followed. He was convicted of aggravated robbery and theft of property, and was sentenced to a term of 240 months in the Arkansas Department of Correction.
On appeal Mr. Irvin contends that (1) he was denied his constitutional right to assistance of counsel at trial, and (2) his continued incarceration for a conviction based upon “clear error” constitutes a denial of due process. The State concedes that the trial court deprived appellant of his Sixth Amendment right to counsel. We agree and therefore reverse and remand for a new trial.
The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998). Article 2, Section 10, of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Id. No sentence involving loss of liberty can be imposed where the right to counsel has been denied. Id.
Here, at the hearing in chambers, appellant told the trial court that he wanted to fire Mr. Davis because of the “dirty language” he used in a motion for the judge’s recusal. The court told appellant that appellant had “some supervisory capacity” over his attorney and the filing of the motion. Appellant replied, “I don’t know how to go about this, you know. I need —■ I need someone to represent me in this.” Appellant also told the court that he was in pain and that he had records of his visits to the emergency room and a doctor’s office. The court stated:
Well, this Court had a, had a pretrial hearing the last time this was set for trial and the record will reflect that. And you and I had some discussions. I was concerned at that point in time with Mr. Davis’ representation of you from the standpoint that the matter was set for trial that day. I did not grant a continuance until that day. Mr. Davis didn’t show up that day and subpoenas had not been issued.
I was concerned because it didn’t look like Mr. Davis had prepared at least to the extent of requesting subpoenas, and I think I advised you of that on the record. I also advised you if you wanted another attorney to act diligently in changing an attorney. I don’t think that you’ve done that.
[YJou’ve had adequate opportunity to get another attorney in this case if you had wanted one before waiting until the day when this, or the day before this case was set for trial, which is — The first time I heard anything about any continuance or changing or firing attorneys was yesterday. That was long after a jury had been called. And I consider this a motion to continue and in the exercise of my discretion, I’m not going to grant the motion to continue.
The court then considered appellant’s motion for recusal. During discussion of that motion, appellant referred to a paper he had brought that had been typed by Mr. Davis. The following colloquy occurred:
The Court: I’m going to let you decide whether you want to offer these documents or not. It’s up to you.
The Defendant: I wished I had an attorney here with me.
The Court: Well, I do, too, but apparendy you made the decision to fire him, so — do you want to offer these?
The Defendant: Well, I really had no choice.
The Court: Well, I don’t know about that. So do you want to offer this or not?
The Court: Do you want to offer this?
The Defendant: I don’t know — I really need a, an attorney, sir.
The Court: Okay.
The Defendant: Please.
The Court: So you don’t have anything else —
The Defendant: Pm begging you. Please —
The Court: — you want to offer?
The Defendant: — let me get — I talked to Mr. McArthur.
The Court: You — I’ve already said I hadn’t, I’ve refused to grant the continuance to allow you to get another attorney because your request was not made with due diligence.
The court took further evidence on the motion to recuse, denied the motion, and then stated the following:
I want to address you on an issue. Mr. Davis is not here. This court has not relieved him.
Now, I personally believe the circumstantial evidence in this case is that Mr. Davis is not here for a reason. It’s to protect Mr. Irvin who’s still his client so that Mr. Irvin can claim, if we go forward with the trial without Mr. Davis absence [sic], that Mr. Irvin did not have, for appellate purposes, the benefit of the counsel that he had. I think that’s why Mr. Davis isn’t here today.
I think, as I said, circumstantial evidence shows that. Now, if I force Mr. Irvin to trial without Mr. Davis here today, then Mr. Irvin can argue that on appeal. The case might be reversed for that. I don’t know. You never know what an appellate case is going to do. I’m sufficiently convinced that Mr. Davis and Mr. Irvin have been attempting to delay this matter every time that it came up. Now, I have no way to verify their disagreement. All I can do is hear what Mr. Irvin says.
The judge further stated that he believed appellant, by his conduct at the last minute, had waived his constitutional right to counsel and could be required to go to trial pro se. Appellant replied, “Well, me and Mr. Davis, we’re not in this together to prelong [sic\ this.”
The right to counsel may be waived, but the waiver must be made knowingly, voluntarily, and intelligently. Smith v. State, 329 Ark. 238, 947 S.W.2d 373 (1997). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights, and the burden is upon the State to show that an accused voluntarily and intelligendy waived his fundamental right to the assistance of counsel. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). The Daniels court further explained:
[W]e have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal.
322 Ark. at 373, 908 S.W.2d at 640 (citations omitted). Furthermore, there are three requirements that must be met before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se in a criminal case. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled on other grounds, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). The requirements are that (1) the request to defend oneself is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. Id. at 244, 704 S.W.2d at 611.
Here, as in Philyaw, appellant did not ask that he be allowed to represent himself, and the record reveals absolutely no waiver of that right, yet appellant was forced to represent himself. Therefore our inquiry becomes whether appellant’s conduct prevented the fair and orderly exposition of the issues and amounted to a forfei ture of his right to counsel. See Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).
The trial judge stated that he believed that circumstantial evidence showed that counsel’s absence was deliberately planned to delay appellant’s trial and for purposes of appeal if a trial proceeded without benefit of counsel. The State as appellee acknowledges that it finds no evidence in the record to support the trial court’s suspicions that counsel’s absence was deliberately planned to delay appellant’s trial and for purposes of appeal. The State therefore concedes that it cannot in good faith argue that counsel and appellant concocted this scenario as a tactic for delay.
The record does show appellant’s persistent pleas for an attorney after his retained counsel failed to appear, and it also shows the trial court’s repeated refusal to postpone the trial until counsel could be obtained. It is within the trial court’s discretion to grant a continuance so that a criminal defendant may obtain a new attorney, and this decision will not be reversed absent an abuse of discretion. Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). In making this determination, the trial court may consider the following factors: (1) the reasons for the change, (2) whether other counsel has already been identified, (3) whether the defendant has acted diligently in seeking the change, and (4) whether the denial is likely to result in any prejudice to defendant. Id. at 559, 953 S.W.2d at 35 (citations omitted).
In Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998), our supreme court reversed and remanded a case for a new trial where the trial court required the defendant to go to trial without an attorney. One month before trial, the trial court had dismissed the public defender from representing the defendant upon its finding that he could afford to hire his own attorney, and the defendant had sought a continuance one week before trial, claiming that he needed more time to find an attorney. The supreme court, noting the absence of convincing evidence to support the conclusion that the defendant’s motion for a continuance was an attempt to postpone his trial date, held that the trial judge had abused his discretion by requiring him to be tried without counsel.
Here, Mr. Davis was appellant’s counsel of record on the day of appellant’s trial. As the trial court noted, the attorney was required to be present the day of trial. Although the trial court announced that it would impose sanctions against the attorney, he was never excused from representing appellant. The court specifically noted that it had not issued an order allowing appellant’s attorney to withdraw, and the court stated that the attorney could not withdraw without such an order. Thus, appellant had an attorney of record but was forced to trial without the benefit of having him present. The record clearly shows that the trial court abused its discretion in denying appellant a continuance so that he could obtain counsel before proceeding to trial. Therefore, we reverse and remand for a new trial.
For his second point on appeal, appellant contends that his continued incarceration is premised upon a conviction resulting from clear error, constituting a denial of due process. He asks that he be released and the charge dismissed or, alternatively, that he be allowed a reasonable bail until a determination of his direct appeal is made. Such relief can be sought by appellant once the case is within the jurisdiction of the trial court on remand.
Reversed and remanded for new trial.
Griffen and Crabtree, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Arthur McFarland, Sr., appeals from the termination of his parental rights by the Carroll County Circuit Court. On appeal, appellant asserts that the trial court erred in finding that the Department of Human Services (“the Department”) proved by clear and convincing evidence the likelihood that R.M. or his sibling would be adopted if the termination of parental rights was granted. We affirm.
On January 23, 2003, the Arkansas Child Abuse Hotline received a report that R.M., a five-month-old child born August 11, 2002, had non-accidental trauma consistent with shaken baby syndrome. The child suffered from bilateral subdural hematomas and bilateral retinal hemorrhages and required emergency surgery at Arkansas Children’s Hospital. A seventy-two-hour hold was placed on R.M. and his sibling A.M., born November 24, 1999. As a result of R.M.’s injuries, appellant father was arrested on charges of first-degree battery. The children were placed in DHS custody. At the time of the adjudication hearing, appellant father was in jail, and there was some concern about the mother’s ability to protect the children from appellant. There was also testimony that both parents admitted that they used marijuana regularly and used methamphetamine as well. The court ordered that the mother submit to random drug testing and ordered that appellant not be allowed visitation as long as he remained incarcerated. The ■Department was ordered to provide a status report of R.M.’s condition to appellant while he was in jail and to pay for a psychological and psychiatric evaluation of appellant. With the ultimate goal of the case being reunification with the mother, the court determined that the two children were dependent-neglected and that the children should remain in the Department’s custody.
At a review hearing held on July 3, 2003, the trial court amended its previous order and required the Department to provide appellant with counseling services and transportation to any counseling appointments. At the next review hearing held on October 9, 2003, Martin Faitak, a clinical psychologist, testified that he performed psychological evaluations on both Ms. McLemore and appellant. He performed a MMPI, a test designed to evaluate symptoms of psycho-pathology or personality aberrations. Faitak diagnosed appellant with a general personality disorder. However, because personality disorders are more difficult to diagnose, Faitak needed to conduct further testing and evaluation in order to provide a more specific diagnosis. Faitak recommended individual and group therapy for appellant. Ultimately, he concluded that “it would be a real high risk to place [the] kids back with either Janet McLemore or [appellant] without their having substantial treatment. By substantial, I mean years, and consistent, intense with the same therapist, ongoing, weekly and with follow-up.”
A petition to terminate parental rights was filed on November 13, 2003. At the termination hearing on June 17, 2004, Dr. Barry Allen, a pediatrician in Rogers, Arkansas, testified that both A.M. and R.M. had previously been in his care. A.M. had a relatively good medical history. However, R.M. suffered from seizures, cerebral palsy, and reflux. Because of the reflux problem, R.M. also had a history of asthma, wheezing, and upper respiratory infection. R.M. was fed through a gastrostomy tube placed in his stomach and had to be fed every three to four hours. As a result of the brain trauma from the Shaken Baby Syndrome, R.M. suffered from cortical blindness.
Yadira Cook, the family service caseworker, testified that at the time of the hearing, the children had been in the Department’s care for seventeen months. She testified that when the children were first brought into foster care, A.M. was very fearful of men, and he had trouble adjusting to his foster dad. A.M. had night terrors and qualified for therapy in various areas. However, after seven to ten months of therapy, A.M. had improved dramatically. Ms. Cook stated that, considering all the facts, she thought it would be in the best interest of the children that the parents’ rights be terminated.
Michelle Yarber testified that she was a family service worker supervisor with the Department and was familiar with the Department’s adoption program. She had worked on cases for the Department in the past that resulted in successful adoptions. She stated that because of the ages of the two children and the fact that they were a sibling group, it was likely that they would be adopted. In her opinion, even though R.M. had medical needs, there were adoptive parents that were qualified to meet those needs.
Ms. McLemore testified that she and appellant had been together for twelve years. She testified that appellant was a “controlling and abusive man.” He was abusive to her, and as a result, she was afraid of him. Nonetheless, she remained with him because she “was dependent on him.” Appellant was in charge of tending to the children during Ms. McLemore’s working hours. She testified that when she arrived home after work on the day of the incident, appellant said to her, “the damn baby won’t let me sleep.” A day or so later, she stated that R.M.’s “eyes started to roll,” and he was crying. She claimed that she did not know what was wrong with him, but she had to go to work, so she did not take him to the doctor. She later told a friend at work about R.M. The friend went to the home to check on the child, and the friend and appellant took the child to the doctor. The child was airlifted to a Rogers hospital and then airlifted to Arkansas Children’s Hospital. The child underwent emergency surgery and was diagnosed as having shaken baby syndrome.
At the conclusion of the testimony, the trial court terminated the rights of both parents. This appeal followed.
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. Id. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Ark. Dep’t of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992). Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Baker, supra.
Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2003) states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341 (b)(3)(B). In this case, the trial court relied upon the following grounds:
(vi)(a) The court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile’s parent or parents.
(b) Such findings by the juvenile division of circuit court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents;
Appellant’s only argument on appeal is that the trial court erred in finding that the Department proved by clear and convincing evidence the likelihood that R.M. or his sibling would be adopted if the termination of parental rights was granted. Appellant further argues that the consideration by the court of the likelihood of adoption “should be construed to require an assessment of the probability that potential adoptive parents will select a particular child, such as [R.M.], who has severe disabilities.” Pursuant to the statute, termination of parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of such factors as the likelihood of adoption of the child. See Ark. Code Ann. 9-27-341(b)(3). Appellant conceded in his brief that adoptability of the children is but one factor to consider in the overall termination of one’s parental rights. There is no requirement that every factor considered be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that the termination is in the best interest of the child. It would indeed be ironic if, having perpetrated the abuse which resulted in R.M.’s disabilities, appellant could then in turn use those disabilities as the sole basis to prevent the termination of his parental rights.
In its order, the trial court specifically stated that “the children are adoptable, notwithstanding [R.M.’s] disabilities.” Thus, the trial court considered in its termination of parental rights the adoptability of the two children, including R.M. and his medical needs. Pursuant to our standard of review, we reverse only if the trial court’s finding is clearly erroneous. After a thorough review of the record, we cannot say that the trial court’s findings in this case are clearly erroneous. Accordingly, the trial court’s order terminating appellant’s parental rights is affirmed.
Affirmed.
Pittman, C.J., and Crabtree, J., agree.
The mother, Janet McLemore, has a total of five children. R.M. and A.M. are the subject of this appeal and are the youngest of the five children. The two oldest children belong to appellant, and, while Ms. McLemore and appellant were still living in California, the two children were removed from appellant and Ms. McLemore’s custody and ultimately adopted. Also while living in California, Ms. McLemore lost custody and rights of her middle child to the child’s father. | [
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John E. Jennings, Judge.
This is a workers’ compensation case. Appellant, Lee Wayne Jeter, appeals from an order of the Commission, which found that he failed to prove by a preponderance of the evidence that medical problems requiring surgery in July 1994 were a compensable consequence of his June 1991 com-pensable injury. He argues that the Commission’s finding is not supported by substantial evidence. Appellee, B.R. McGinty Mechanical, cross-appeals from the Commission’s order, arguing that the award of attorney’s fees is not supported by substantial evidence. We disagree, and affirm on both the appeal and the cross-appeal.
Appellant suffered a compensable injury while employed by appellee as a welder when he experienced a myocardial infarction at work on June 12, 1991. At that time Dr. Bruce Murphy, appellant’s cardiologist, performed an angioplasty of a tight blockage in appellant’s right coronary artery. Appellant subsequently developed another blockage in the right coronary artery which required another surgery in July 1994. He sought workers’ compensation benefits for the 1994 blockage and surgery, arguing that they were causally related to the compensable 1991 injury.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Where a claim is denied, the substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987).
We also recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight given to their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). In addition, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Whaley, supra.
At the hearing appellant testified that he has remained under Dr. Murphy’s care since his 1991 heart attack and surgical procedure. His attempt to return to work after his heart attack was unsuccessful. He has remained on prescription medicines for his heart, has lost weight and quit smoking, and plays golf about once a week. After a check-up disclosed the subsequent blockage he underwent the second procedure in July 1994.
Medical evidence consisted of a letter from Dr. Murphy, appellant’s treating cardiologist, which stated:
Wayne Jeter is a patient of mine who I have been taking care of since 1991. He had a myocardial infarction in June 1991 and subsequently had the artery opened, June 1991, with angioplasty of a tight blockage in his right coronary artery. In July 1994, repeat coronary angiograms demonstrated that the exact blockage was back at the exact same location in his right coronary artery. This was effectively treated with a directional coronary ather-ectomy with removal of a large fractured plaque in the coronary at the site that the original infarct had occurred. The question arose as to whether or not this was a work related problem. His original infarct occurred while at work. My only certain response is that the exact same blockage is back in the exact same location and therefore, the ongoing treatment is for the same problem at a later time. I am afraid I can’t be more specific than that. It is very clear from his coronary angiograms that a new blockage had not developed, but the old blockage had recurred at the exact same site. I hope that this is helpful in your work in this matter.
Also in evidence is a letter from Dr. Eugene M. Jones, which stated:
I reviewed the records on Mr. Wayne Jeter with reference to his myocardial infarction that occurred in June, 1991 and his subsequent angioplasty. In addition to this, in July, 1994, he had repeat angiogram which showed coronary artery obstruction in approximately the same location of the right coronary artery. The patient does have other coronary artery disease as evidenced by mild obstructions in both the left anterior descending and circumflex systems.
I am well aware that there are many Workman Comp claims for myocardial infarctions where the patient experienced a myocardial infarction while doing his usual routines. Commonly, this is classified as related to that work routine, however, as we also well recognize atherosclerosis of the coronaries is a process of continual change within the coronary arteries. The process involves break down of the wall of coronary arteries due to rather high sheer forces due to the amount of blood being transmitted to the myocardium. The break down in that wall is associated first on a genetic basis; that is, it is transmitted somewhat by heredity but is influenced by other factors such as cholesterol, smoking and regular exercise program.
In this particular case, there appears to be a focus on the aspect that the recurrent lesion in the right coronary artery in 1994 was in the exact location that it was in 1991. This may indeed be more reflective of the sheer forces that are present in that coronary artery producing the lesion in the same site as previously had occurred. Since the patient had apparently had reasonable relief of symptoms for prolonged period, one would suggest that this may well be a progression of the disease process; that is atherosclerosis that has been documented as well in his other arteries. In review of this material, there appears to be some reference to the fact that the patient had reonset of his symptoms and in fact in March, 1992 on a treadmill he had some chest tightness in the recovery period and had some mild electrocardiographic changes but no echocardiographic evidence of alterations of wall motion. This then would make one consider that the patient did not have complete resolution of his right coronary artery lesion with the angioplasty done in 1991. Certainly this is all conjecture.
I hope I have outlined the various possibilities and that my opinion really is that atherosclerosis of the coronary arteries is not significantly related to a patient’s occupation but is more related to genetic factors and lifestyle conditions such as smoking, high cholesterol and hypertension.
When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury. McDonald Equip. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). The basic test is whether there is a causal connection between the two episodes. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
The Commission’s opinion quotes the letter from Dr. Murphy, and then states:
With regard to Dr. Murphy’s letter, we note that Dr. Murphy has not suggested that either the prior myocardial infarction itself, or the nature of the 1991 blockage treatment, increased the likelihood of the formation of a “recurrent” blockage at the site of the 1991 blockage. As we interpret Dr. Murphy’s statements, Dr. Murphy’s only basis for a possible causal connection between the claimant’s 1994 coronary blockage and the claimant’s 1991 coronary blockage is the mere coincidence that each blockage occurred at the same location. However, relying on Dr. Murphy’s observation to find that the claimant’s 1994 coronary blockage was related to the 1991 infarction (or the 1991 blockage treatment) would require us to engage in speculation and conjecture/and speculation and conjecture can never be substituted for credible evidence, no matter how plausible. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
Moreover, the greater weight of the evidence indicates that the coronary blockage identified in 1994, was causally related to other factors and was not related to either the prior infarction or the prior blockage treatment. In this regard, Dr. Eugene Jones, also a cardiologist, indicated in a November 28, 1995, letter to the respondents’ attorneys that he reviewed the claimant’s 1991 and 1994 medical records (which were not submitted into evidence). According to Dr. Jones, atherosclerosis is a process of continued change within the coronary arteries which involves a break down of the walls of the coronary arteries due to rather high sheer forces created by the amount of blood being transmitted to the myocardia. Dr. Jones indicated that coronary artery break down is associated first with genetic factors, but other factors including cholesterol, smoking, and regular exercise may influence the process. Dr. Jones also indicated that recurrence of a lesion at the same location in the claimant’s right coronary artery may merely reflect the sheer forces created by blood flow in the artery. In addition, Dr. Jones indicated that atherosclerosis is present in other arteries as well as the right coronary artery and that the claimant can be experiencing a natural progression of that disease process. Moreover, Dr. Jones opined that atherosclerosis, the underlying disease process, is more related to genetic factors and lifestyle conditions (smoking, high cholesterol and hypertension) and is not significandy related to a person’s occupation.
Although Dr. Murphy did not address genetic factors or lifestyle conditions in his assessment of the probable etiology of the claimant’s 1994 coronary blockage, we note that the claimant testified that Dr. Murphy placed him on a strict walking program and a low cholesterol diet, and advised the claimant to lose weight and quit smoking after identifying the 1994 blockage.
Therefore, after reviewing the opinions'of Dr. Murphy and Dr. Jones, and all other evidence in the record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that his 1994 coronary blockage is causally related to the compensable injury he sustained in 1991.
The determination of whether the causal connection exists is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). The Commission interpreted appellant’s only medical evidence, Dr. Murphy’s letter, as stating that the only basis for a possible causal connection between the appellant’s 1994 coronary blockage and his 1991 coronary blockage is the “mere coincidence that each blockage occurred at the same location.” Mere coincidence is not to be equated with causation. Lybrand v. Ark. Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (1979). The Commission obviously considered the opinion of Dr. Jones, which indicated that appellant’s atherosclerosis was related to genetic and lifestyle factors, and which described the possible connection to his prior blockage as “conjecture.” It is the duty of the Commission to translate the evidence on all issues before it into findings of fact. The specialization and experience of the Commission make it better equipped than this court to analyze and translate evidence into findings of fact. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
Because the Commission’s opinion displays a substantial basis for the denial of the relief sought, we must affirm.
The Commission’s opinion also awarded appellant’s attorney a fee of ten percent of appellant’s compensation for a seventy-five percent permanent partial anatomical impairment. Appellee cross-appeals, arguing that there is no substantial evidence to show that the issue of permanent partial disability was controverted.
The Commission’s opinion notes that appellee initially controverted compensability on appellant’s June 1991 injury in its entirety. However, at the start of the hearing on September 23, 1992, appellee proposed stipulations concerning compensability, lump sum temporary total disability benefits, and the commencement of permanent partial disability benefits. Appellee’s counsel stated that the claim had been controverted in its entirety, and appellee would pay appellant’s counsel “in lump sum attorney’s fees on those benefits which have accrued to date, and then pay him accordingly in some fashion for benefits in the future prior to either a joint petition settlement or further determination by the Commission regarding disability.” The agreed order, entered on October 26, 1992, reflects that appellee would begin to pay permanent partial disability on an anticipated anatomical ruling from Dr. Murphy and states that appellant’s attorney “is to be paid a maximum attorney’s fee on all controverted benefits.” Reading the order in fight of the stipulations, the Commission stated:
[W]e understand the administrative law judge’s September 23, 1992 order to require [appellee] to pay an attorney’s fee on [appellant’s] permanent partial disability compensation as well as on [appellant’s] reasonably necessary medical expenses and his temporary total disability compensation. Consequently, we find that the issue of the [appellee’s] obligation for an attorney’s fee on the claimant’s 75% permanent partial impairment rating is now res judicata.
The Commission further stated that, even if the issue of attorney’s fees for appellant’s permanent partial disability was not res judi-cata, it would still find that appellee had controverted appellant’s entitlement to permanent partial disability.
Appellee argues that it is undisputed that the issue of permanent partial disability was reserved, as shown in the prehearing order, and that appellee agreed to pay whatever rating was assigned and has done so. The Commission, however, found that the record of the hearing and the ALJ’s order from 1992 clearly establish that the parties did in fact raise and develop the permanent partial disability issue at the hearing. Furthermore, the Commission found that the evidence indicates that appellee initially denied liability for any benefits until the September 23, 1992, hearing, but then stipulated that appellant was in fact entitled to compensation for a permanent anatomical impairment rating retroactive to September or October of 1991.
Whether or not a claim is controverted is a question of fact for the Commission, and its finding on this issue will not be reversed unless there is no substantial evidence to support it. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). Because we cannot say that reasonable minds could not reach the Commission’s conclusion regarding controversion and attorney’s fees, we affirm.
Affirmed.
Pittman and Arey, JJ., agree.
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David M. Glover, Judge.
This is a wrongful-termination case. Appellant Crawford County, Arkansas (County), appeals from a jury verdict in favor of appellee Dottie Jones for breach of contract. Jones cross-appeals from the trial court’s granting of the County’s motion for directed verdict on her claims of outrage and violation of the Arkansas Whistle-Blower Act, as well as the denial of her request for attorney’s fees. We affirm on direct appeal; we affirm in part and reverse and remand in part on cross-appeal.
Background
In 1979, Jones went to work in the Crawford County Assessor’s Office as an appraiser. In November 1999, the County hired Accurate Mapping Company to conduct reappraisals in accordance with Act 1185 of 1999. Accurate Mapping agreed to use appraisers from the assessor’s office for the reappraisals, and Jones was assigned to work on the reappraisal under Accurate Mapping’s supervision. On July 3, 2000, Accurate Mapping released Jones back to the assessor’s office, due to alleged complaints against Jones. On that same day, the assessor, Dianna Faucher, terminated Jones based on the same complaints.
The County adopted an “Employee Policy Handbook” (handbook), effective July 11, 2000. This handbook replaced an earlier policy ordinance adopted in 1993 and later amended. The handbook provided, in pertinent part:
All County employees are permanent employees with a property right in their employment. Each County employee has a substantial expectancy of continued employment until the employee voluntarily resigns or “just cause” for reduction or removal of pay or position is proved by the County at a pre-deprivation hearing or a property interest hearing (a “grievance hearing”) which will be provided if the affected employee requests a property right hearing in the time and manner required by this policy....
“Just cause” for the reduction or removal of pay or position was defined to include “any reason rationally related to the effectuation of a legitimate County objective.” The handbook provided that an elected official or departmental supervisor may lay off an employee whenever it is necessary by reason of non-appropriation of funds or work, or by reason of a bona fide abolishment of or change in the duties of a position, or when the department is reorganized and the need for the position is eliminated. However, the handbook, in discussing layoffs, also provided as follows:
No employee with permanent employee status is to be separated by lay off while there are extra help, temporary, seasonal or probationary employees serving in the department in the same or equal or lower-level position for which regular-status employee or employees are qualified and available to reassignment.
In determining the order of lay off of employees with regular status, the elected official may consider, on a consistent and equitable basis, such factors as seniority (the length of a County employee’s continuous service with the County since the last date of hire), work record, conduct and qualifications.
The supervisory official had the burden of proving “just cause” for the supervisory official’s intended discipline or dismissal of the employee. In the event that an employee was involuntarily terminated for any reason, other than as a result of disciplinary action, attempts were to be made to give the affected employee at least two weeks’ notice.
Jones pursued the handbook’s grievance procedure and was reinstated effective August 1, 2000. Then, on August 2, 2000, Faucher notified Jones that she was being laid off effective August 4, 2000. Jones again attempted to utilize the grievance procedure, but her request for a hearing was denied on August 15, 2000.
Jones filed suit against the County and Faucher, individually and in her official capacity, alleging causes of action under the Arkansas Whistle-Blower Act, breach of contract/wrongful termination, and outrage. The County and Faucher denied the allegations of the complaint. Jones took a nonsuit as to Faucher prior to trial.
The Evidence
Sharon Partain, a Crawford County Justice of the Peace, testified concerning the adoption of the handbook. She also discussed the contract between the County and Accurate Mapping, stating that, under the contract, Accurate Mapping had the right to use County employees with Accurate Mapping reimbursing the County for the employees’ salaries and benefits. She also noted that Accurate Mapping had the right to return the employees to the County if they did not work out, and there were provisions for such instances. As an example, she stated that employees were supposed to be given two weeks to rectify any problems and, if they had not rectified the problem, then they were to be returned to the County office. She also stated that Accurate Mapping could not terminate County employees. Par-tain stated that, at the grievance hearing, Faucher indicated that Accurate Mapping had returned Jones to the County, but she did not have a position for her. She also stated that, at the same grievance hearing, Faucher admitted that she did not follow proper procedures with regard to Jones. Partain also admitted that an elected official such as Faucher should be able to handle the day-to-day employment issues in his or her office unless there was something specifically contained in the handbook. She also expressed the opinion that, because of Jones’s seniority, she should have been rehired by Faucher, and, if there was no slot available, someone with less seniority should have been laid off. She admitted that the handbook provided for layoffs and that the laid-off employee was not entitled to a hearing.
Partain testified that Jones discussed misdeeds in the assessor’s office with her on at least one occasion. She was uncertain whether the conversation took place prior to the grievance hearing and later testified that the conversation took place on the night of the hearing. She also stated that she was aware that Jones had similar discussions with some of the other members of the quorum court.
Ronnie Dale, a former appraiser for the County, testified that Faucher told him that Jones had been terminated because Accurate Mapping had received complaints about Jones and did not want Jones working for them and that she had no position available for Jones. He also stated that after Jones’s termination, Faucher asked him to sign a statement providing that, if Accurate Mapping released him or another County employee back to the County, the employee would be laid off because the assessor’s office had no positions open. Dale also testified to instances when Faucher lowered appraisals on properties he had appraised, implying that the reductions were improper. He also stated that, shortly after Accurate Mapping started the reappraisal process, he spoke with Faucher about some problems and encouraged her to do something about Accurate Mapping’s not performing its duties under the contract as it was supposed to do. Dale testified that, with the possible exception of a part-time slot in the personal- property section, he was not aware of any open positions in the assessor’s office at the time Jones was laid off.
Patty Hill, the Crawford County Clerk, testified that in the year 2000 there was one part-time person employed in the assessor’s office, who eventually became a full-time employee in April 2001. She stated that in the year 2001 there were four other part-time employees in the assessor’s office. She also stated that there are no appraisers currently employed by the County.
Hubert Staggs testified that he spoke with Faucher after his tax bill had doubled following Jones’s visit to reappraise his property. When Staggs discussed the matter with Faucher, he was told that he had been “Dottie-tized.”
Connie Byerle, an abstractor and a data-entry person in the assessor’s office, testified that she was hired as a part-time employee in July 1988 before becoming full-time in August 1999. She was not aware of any full-time positions available in the assessor’s office in August 2000. She stated that she declined to become an appraiser in August 2000 because she would have become an employee of Accurate Mapping and not the County. She testified about examples of real property belonging to Faucher or her family not being assessed at full value. She testified that, shortly after Jones’s reinstatement, she and other employees had a meeting during which they told Faucher that, if she created another position for Jones, the other employees were going to quit their jobs.
Lezlie Williamson, the project manager for Accurate Mapping, testified that the County’s appraisers were not familiar with the requirements of Act 1185 of 1999. She also testified that she and others received complaints about Jones. At one point in her testimony, Williamson indicated that the complaints concerning Jones had been received in March while, at another point, she indicated that the complaints had been received during June. She testified that she had the impression that Faucher was trying to protect Jones’s job by not promptly relaying complaints. She also testified that, after Jones received a reprimand about her performance from Carolyn Walker, the president of Accurate Mapping, her performance improved. However, she also testified that, when she told Walker about all the complaints, Walker decided to release Jones back to the County.
Williamson indicated that Don James was terminated because he was “windshield appraising.” She was not aware if Jones was the person who disclosed this information to Faucher. She also admitted that “windshield appraising” was a violation of both the contract with the County and state law. She also stated that the contract between the County and Accurate Mapping provided for a ten-day period during which appraisers could correct any deficiencies in their job performance. She admitted that Jones was not given a chance to correct any of the complaints received in June 2000. Williamson stated that she conducted the appraisal on Faucher’s personal residence.
Dottie Jones testified that she was hired in the assessor’s office in 1979 and was a level-three appraiser at the time she was laid off. She admitted that, when Accurate Mapping began the reappraisal, there was a meeting to discuss how things would be done and that they would be supervised by Accurate Mapping. She also admitted that she received a letter from Carolyn Walker in March 2000 informing her that Accurate Mapping had found her performance to be deficient. She also stated that Lezlie Williamson occasionally accompanied her when she made appraisals, keeping records of her work. Jones stated that it was her understanding that she was still a County employee after Accurate Mapping began the project. She also stated that she received a letter from Lezlie Williamson stating that her performance had improved. Jones stated that she never received any other complaints until July 2000, after she had asked for a couple of days off. She described receiving a phone call from Faucher informing her that she was being laid off after Accurate Mapping had returned her to the County. She described the grievance hearing and Faucher stating that there had been some complaints about Jones and that she (Faucher) did not have a slot for Jones. She also stated that Faucher admitted not following the handbook’s procedures in the layoff. Jones listed possible jobs she could do in the assessor’s office and suggested that she was terminated because she would tell Faucher of instances when the assessor’s office was not following state law, such as the need to have mobile-home decals.
Jones testified that she told Faucher that Don James was “windshield appraising.” She stated that Faucher responded that she could not do anything about it. Jones testified that she informed quorum court members such as Giles Osborne, Doyle Johns, and Sharon Partain of the improprieties in the assessor’s office. She stated that the conversations with Osborne and Johns occurred prior to the grievance hearing.
Jones testified that she disagreed with Williamson that her work was not up to standard. She also stated that, at the time that she was laid off, there were temporary positions available in the assessor’s office. She also stated that she told Faucher of some of the problems because it was her duty to inform her boss. She stated that the conversation with Faucher regarding her discussions with the justices of the peace occurred prior to July 3. Jones also described her mental condition after being laid off as being “a pretty bad depression.”
Carolyn Walker, president of Accurate Mapping, testified as to the contract between her company and the County. She testified that the work-in-kind program was a means by which Accurate Mapping would use the County’s appraisers under Accurate Mapping’s supervision. Walker testified that Faucher, as assessor, had no input on where the appraisers went or what they did because Accurate Mapping controlled the day-to-day activities of the appraisers and reimbursed the County for their salaries. Walker stated that Jones was not pleased that Accurate Mapping held the contract and that she (Jones) felt she knew how to appraise property. Walker described Jones as not always willing to listen to instructions from the project manager about the use of new procedures in the reappraisal. She also described Jones as having a problem with Donald James. Walker described writing a letter, dated March 17, 2000, stating that Accurate Mapping found that Jones and Ronnie Dale were not properly performing their jobs and giving them ten days to correct the situation or they would be returned to the County. She testified that, after the letter was written, Lezlie Williamson advised her that Jones was improving her performance for a time before getting more complaints. She also described a letter to Faucher, dated June 27, 2000, informing Faucher of Accurate Mapping’s decision to dismiss Jones because complaints about Jones were being received on a daily basis from both the private sector as well as Crawford County officials. Walker stated that she believed that there was just cause to terminate Jones. She admitted that there were problems with the reappraisal and that Accurate Mapping and the County were found to be out of compliance. She also stated that she never terminated Jones because all she could do was return her to the County.
Diana Faucher, the Crawford County Assessor, testified that Act 1185 of 1999 required reappraisals to be done differently than in the past. She stated that the State had a list of contractors to choose from to conduct the reappraisal and that Accurate Mapping was chosen because they would use the work-in-kind program and use County appraisers. At the time of the reappraisal, she stated that there were four field appraisers for the County and that, by the end of the year 2000, all of them had left County employment. Faucher stated that there were several meetings between her staff and Carolyn Walker and Lezlie Williamson of Accurate Mapping during which the staff was told what would be expected of them. She stated that Accurate Mapping would be reimbursing the County for the appraisers’ salaries and benefits but that they were under the supervision of Accurate Mapping, who was responsible for the contract. Faucher also stated that she informed the employees that, if they were laid off or returned to the County, she had no choice but to lay them off because the reappraisal company was doing their job. She also stated that she was told by several appraisers that, if they were released from Accurate Mapping, they were not going to be silent. She stated that the appraisers did not like the fact that Accurate Mapping was managing their work.
Faucher testified that, on occasion in 2000, she received complaints from citizens concerning Jones. She also stated that she delayed informing Lezlie Williamson about those calls. She also testified about receiving two letters from Carolyn Walker concerning Jones and her release from the contract. She described her call to inform Jones of the layoff and of possible work in Sebastian County. She also stated that she informed Jones that she could request a grievance hearing. She stated that the result of the grievance hearing was that she was instructed to rehire Jones. Faucher stated that she sent Jones a letter laying her off for lack of work and because there was no position available. Faucher stated that she never fired Jones nor knew why Jones asked for the grievance hearing. She asserted that Jones and the other appraisers knew that they would be laid off if they were returned to the County. Faucher also denied terminating Jones because of the complaints. Faucher stated that she testified at the grievance hearing that there was no position available for Jones. Faucher admitted that Connie Byerle was still a probationary employee at the time Jones was laid off. She indicated that her staff would not have been happy if she had tried to make a new position for Jones or laid somebody else off for Jones to have a position. Faucher stated that she believed she followed the handbook in Jones’s layoff. Faucher also admitted that she did not tell Jones about the complaints that she received.
The Trial Court’s Decision
At the close of Jones’s case, the trial judge directed verdicts in favor of the County on her Whistle-Blower Act and outrage claims. The jury returned a verdict in Jones’s favor on the breach-of-contract claim and awarded damages of $149,370. Following trial, the County filed a motion for judgment notwithstanding the verdict, alleging that there was insufficient evidence to sustain the jury’s verdict. Judgment was entered on September 30, 2003. The motion for judgment notwithstanding the verdict was denied on October 10, 2003. Jones also filed a motion for attorney’s fees on October 31, 2003. The trial court denied the fee motion by order entered on December 8, 2003. The County filed its notice of appeal from both the judgment and the order denying its motion for judgment notwithstanding the verdict on November 3, 2003. Jones filed a notice of cross-appeal from the directed verdicts on her whistle-blower and outrage claims on November 17, 2003. She amended her notice of cross-appeal to include the denial of her motion for attorney’s fees.
Direct Appeal
For its sole point on appeal, the County asserts that the jury’s verdict was against the preponderance of the evidence. Our standard of review on motions for judgment notwithstanding the verdict was enunciated in Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002), where the supreme court stated:
[I]n reviewing the denial of a motion for judgment notwithstanding the verdict, we will reverse only if there is no substantial evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter oflaw. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not the appellate court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. In reviewing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and the evidence that is most favorable to the appellee. Circumstantial evidence may meet the substantial-evidence test.
Lee, 348 Ark. at 719, 74 S.W.3d at 644-45 (citations omitted).
In Arkansas, the general rule is that an employer or an employee may terminate an employment relationship at will. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991); Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987). There are two basic exceptions to the at-will doctrine: (1) where an employee relies upon a personnel manual that contains an express provision against termination except for cause; (2) where the employment agreement contains a provision that the employee will not be discharged except for cause, even if the agreement has an unspecified term. Gladden, supra; see also Ball v. Arkansas Dep’t of Cmty. Punishment, 340 Ark. 424, 10 S.W.3d 873 (2000).
Here Jones claims that the County, acting through Faucher, laid her off in violation of the handbook. The County argues that it made the decision through the quorum court hearing to rehire Jones, but that Faucher, acting individually, did not follow the handbook in Jones’s layoff. However, the County does not explain why Faucher’s actions cannot be attributed to the County when she was acting in her official capacity at the time she terminated Jones. Jones worked for the County and Faucher, as an individual, did not have any authority to terminate Jones; she could do so only in her capacity as assessor. The assessor is a county officer. Ark. Code Ann. §§ 14-14-703 (a) (2), 14-14-1301 (a) (4) (Repl. 1998). A county is bound by the acts of its lawfully constituted officers. See Pierce County v. Washington Navigation Co., 27 P.2d 569 (Wash. 1933); 20 C.J.S. Counties § 122 (1990). Both the United States Supreme Court and the Arkansas Supreme Court have held that official-capacity suits generally represent but another way of pleading an action against the entity of which the officer is an agent. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978); City of Marianna v. Arkansas Mun. League, 291 Ark. 74, 722 S.W.2d 578 (1987).
The jury was instructed that one of the elements Jones was required to prove was that the County failed to follow the guidelines set forth in the handbook in Jones’s termination. Jones presented evidence that, at the time she was laid off, there were part-time and probationary employees working in the assessor’s office; that the handbook provided that part-time or probationary employees were to be laid off prior to full-time employees’ being laid off; that for terminations other than disciplinary actions, the employee was to be given two weeks’ notice; and that Faucher notified her on August 2nd that she would be laid off on August 4th. Further, Jones presented evidence that there were other jobs she could do in the assessor’s office besides appraisals. This constitutes substantial evidence to support the jury’s verdict.
We affirm on this point.
Cross-Appeal
Jones raises three points on cross-appeal: that the trial court erred in directing a verdict against her on her Arkansas Whistle-Blower Act claim; that the trial court erred in directing a verdict against her on her outrage claim; and that the trial court erred in denying her motion for attorney’s fees. In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003); Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001); Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990).
In her first point on cross-appeal, Jones argues that the trial court erred in granting a directed verdict on her claim under the Arkansas Whistle-Blower Act, Ark. Code Ann. §§ 21-1-601 through 609 (Repl. 2004). The Whistle-Blower Act provides protection for public employees who report to appropriate authorities the violation of law or the waste of public funds. Such whistle-blowers who are punished by the public employer are authorized to seek actual damages and injunctive relief. In order to prevail in an action brought under the Act, Jones was required to establish, by a preponderance of the evidence, that she had suffered an adverse action because she or a person acting on her behalf engaged or intended to engage in an activity protected under the Act. Ark. Code Ann. § 21-l-604(c). An “adverse action” means to discharge, threaten, or otherwise discriminate or retaliate against a public employee in any manner that affects the employee’s employment, including compensation. Ark. Code Ann. § 21-1-602(1).
The trial court did not specify a reason for granting the directed verdict. In the argument on the motion for a directed verdict on the Whistle-Blower Act claim, the County argued that Jones did not report the alleged wrongful acts to an “appropriate authority,” as that term is used in the Act. However, Jones testified that she reported the incidents to three members of the quorum court and to Faucher. We hold that these were “appropriate authorities” for Jones to report alleged violations. The county government’s legislative powers are vested in the quorum court. Ark. Code Ann. § 14-14-502(a)(1) (Repl. 1998). The Act specifically defines “appropriate authority” as including a member of the governing body. Ark. Code Ann. § 21-1-602(2)(A)(ii). Therefore, the directed verdict cannot be sustained on the premise that Jones did not report the wrongdoing to an “appropriate authority.”
There was also some discussion by the trial court that the remedies in the breach-of-contract and violation of the Whistle-Blower Act claims were the same. If this was the basis for the directed verdict, it was error. Jones was entitled to have the two claims considered by the jury if both were supported by substantial evidence. The doctrine of election of remedies bars more than one recovery on inconsistent remedies, but the doctrine does not limit the number of causes of action asserted by a plaintiff to be submitted to the jury. Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997); Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993); Westark Specialties v. Stouffer Family Ltd., 310 Ark. 225, 836 S.W.2d 354 (1992).
Here, Jones submitted evidence of several possible violations of state law or the contract between the County and Accurate Mapping: the failure to have mobile home decals, one appraiser conducting “windshield appraisals,” Faucher improperly lowering appraisals on certain property after the time for her to do so had expired, and Faucher improperly allowing individuals to claim a homestead exemption without proof of entitlement. Jones also presented evidence that these matters were discussed with quorum court members, as well as with Faucher, that there were other positions available in the assessor’s office, and that Faucher and Lezlie Williamson were seen together at her grievance hear ing, allegedly fabricating complaints against Jones. This testimony, if believed by a jury, would be sufficient to survive a motion for directed verdict. Therefore, we reverse and remand for a new trial on this point.
In her second point on cross-appeal, Jones argues that the trial court erred in directing a verdict against her on her outrage claim. The supreme court has described the elements of a tort-of-outrage claim:
To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Merely describing the conduct as outrageous does not make it so. Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence.
McQuay v. Guntharp, 331 Ark. 466, 470-71, 963 S.W.2d 583, 585 (1998) (citations omitted). Our courts have taken a strict approach in determining the validity of outrage cases and recognized that “the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life.” Travelers Ins. Co. v. Smith, 338 Ark. 81, 89, 991 S.W.2d 591, 595 (1999).
The question is whether there was substantial evidence of outrageous conduct on the part of the County. Merely describing conduct as outrageous does not make it so. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000); Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000).
Four cases where the tort of outrage was alleged and which arose out of the workplace appear pertinent. In Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 69 S.W.3d 393 (2002), the plaintiff presented facts indicating strained working relationships, a deliberate attempt to undermine her authority, false accusations of shoddy work, false accusations and rumors of mental illness, and, eventually, her being placed on leave. The supreme court affirmed the dismissal of the complaint under Ark. R. Civ. P. 12(b)(6), noting that the plaintiff had not alleged any conduct that was beyond all possible bounds of human decency and utterly intolerable in a civilized society so as to rise to the level of outrage.
In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), the plaintiff alleged that he had a dispute with his shift leader while at work, and after work, he tried to discuss the matter, but the shift leader hit him. He alleged that he was fired the next day because management asserted that he had provoked his shift leader into a fight. In that case, the supreme court affirmed dismissal of the outrage claim under Ark. R. Civ. P. 12(b)(6), even though the plaintiffs boss had actually been physically violent toward him. Likewise, in Sterling v. Upjohn Healthcare Services, Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), the supreme court upheld the trial court’s grant of summary judgment to the defendant, despite the plaintiffs employer’s unfounded assertions that the plaintiff was drunk at work, the employer’s attempts to undermine the plaintiff, and the employer’s eventual violent rhetoric regarding the plaintiff.
Only once has our supreme court held that a plaintiff met the standard for proving the tort of outrage in an employee-discharge case. In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), an employer interrogated an employee suspected of theft at thirty-minute intervals for most of a day, denied him prescription medication when he was under obvious stress, and threatened him with arrest. In holding that there was substantial evidence to support the jury verdict for outrage, the supreme court placed special emphasis on the fact that, even though the employer knew of the employee’s lower-than-normal emotional stamina, it refused to permit him to take his medication during the interrogation.
In the present case, Jones’s argument focuses more on how the County’s actions affected her rather than on whether those actions rose to the level of outrage. She does not argue specific evidence of actions on behalf of the County that rise to the level of outrage, other than the testimony of Hubert Staggs. Staggs testified that he spoke with Faucher after his tax bill had doubled following Jones’s visit to reappraise his property. When Staggs discussed the matter with Faucher, he was told that he had been “Dottie-tized.” This does not meet the high standard required for outrage cases. Accordingly, we affirm on this point.
In her third point on cross-appeal, Jones argues that the trial court erred in not granting her motion for attorney’s fees. Jones based her motion of Ark. Code Ann. § 16-22-308 (Repl. 1999), the statute allowing fees in actions for breach of contract, and sought fees of $16,511.92. The County argued that this was not a breach-of-contract case. Although the supreme court held in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), that an action for wrongful discharge in violation of a personnel handbook sounds exclusively in contract, we affirm on the basis that the motion was untimely.
In Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002), the supreme court held that a motion for fees filed more than fourteen days after entry of judgment was untimely under Arkansas Rule of Civil Procedure 54(e). Here, it is undisputed that the judgment was entered on September 30, 2003, and Jones did not file her fee request until October 31, 2003. Therefore, Norman clearly controls on this issue, and the fee request was untimely. See also Morehouse v. Lawson, 90 Ark. App. 379, 206 S.W.3d 295 (2005). Even if the time is measured from the denial of the County’s motion for judgment notwithstanding the verdict, the fee motion is still untimely because it was filed twenty-one days after the order denying the motion was entered.
Affirmed on direct appeal; affirmed in part and reversed and remanded in part on cross-appeal.
Robbins and Neal, JJ., agree.
In so holding, we note that Jones would not be entitled to recover again for lost wages and benefits because she has recovered those same benefits in the breach-of-contract claim. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove that the deceased employee’s work activity was the major cause of his fatal heart attack. On appeal, appellant argues that there is no substantial evidence to support the Commission’s denial of benefits. We agree and reverse and remand for an award of benefits not inconsistent with this opinion.
The record reveals that Randy Williford had been a firefighter for the City of North Little Rock for twenty-two years. On July 6, 1995, he was taking the Firefighters Encounter and Agility Test (FEAT). The test required firefighters to unroll and roll up a fifty-foot section of hose, drag a hundred-foot section of hose weighing fifty pounds one-hundred feet, climb a ladder, and crawl through an attic space. While in the attic, the firefighter is required to use a sledgehammer to vent the roof. The firefighter must then put on an air pack that weighs thirty-five to forty pounds, carry an additional section of hose, and climb up and down three flights of stairs. Finally, the firefighter is required to drag a dummy that weighs 165 pounds a distance of sixty-five feet. All of the above listed activities have to be completed by the firefighter within twelve minutes. Also, part of the test has to be performed in a rubberized coat, pants, boots, and helmet.
At the time that Mr. Williford performed the test, it was July and extremely hot and humid. After performing this test, Mr. Williford began experiencing severe back pain and nausea. His wife found him at home lying on the floor in pain and incoherent. Mr. Williford was taken to St. Vincent Hospital and admitted. Within forty-eight hours, Mr. Williford had a heart attack and died in the hospital at the age of 43. Mr. Williford’s body was exhumed and an autopsy was performed to determine the cause of death. Subsequently, Mr. Williford’s wife presented this claim asserting that the FEAT test on July 6 was the major cause of her husband’s heart attack. The administrative law judge found that Mr. Williford’s activity on July 6 was the major cause of his heart attack. The Commission reversed the ALJ’s decision, denying benefits because it found that appellant failed to prove that his activity on July 6 was the major cause of his heart attack.
On appeal, appellant argues that there is no substantial evidence to support the Commission’s denial of benefits. We agree.
When reviewing decisions from the Workers’ Compensation Commission, the court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if supported by substantial evidence. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996) (citing Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992)). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Crawford, supra (citing City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992)); see also, Couch v. First Nat’l Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Crawford, supra (citing Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983)). Where the Workers’ Compensation Commission has denied a claim, “substantial evidence” requires the appellate court to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995). Despite this stringent standard of review, we have recognized:
Those standards must not totally insulate the Commission from judicial review and render this court’s function in these cases meaningless. We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission.
Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 242, 756 S.W.2d 923, 925 (1988) (citing Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987)). With the above standard of review in mind, this court assesses the evidence to see if reasonable persons could reach the same conclusion.
Arkansas Code Annotated section ll-9-102(5)(A)(iv) (Supp. 1997) provides that a compensable injury means a heart, cardiovascular injury, accident, or disease as set out in section 11-9-114. Arkansas Code Annotated section 11 — 9—114(a) provides:
(a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause of the physical harm.
In denying benefits, the Commission interpreted Dr. Michael L. Bierle’s deposition testimony as concluding that the deceased’s initial laboratory test data did not support a diagnosis of a myocardial infarction on admission. It also found that Dr. Bierle’s testimony raised serious doubt as to whether the deceased’s heart attack was in any way related to the physical exertion on July 6. The Commission placed great weight on the admission records and Dr. Bierle’s testimony.
However, when we review Dr. Bierle’s deposition, it is apparent that the Commission ignored crucial portions of his testimony concerning the precise issue of the major cause of the deceased’s heart attack. The record reveals that Dr. Bierle was unaware of the deceased’s activities on the day of his admission. Thus, he could not say whether the activities that Mr. Williford had engaged in on the day he was admitted were the major cause of the heart attack. He also could not say that the deceased’s pre-r existing physical condition was the major cause of his heart attack. In short, he offered no opinion on the issue of the major cause of the deceased’s heart attack. The laboratory data relied on by the Commission only indicated what Mr. Williford’s condition was at the time he arrived at the hospital; it did not indicate whether Mr. Williford’s activities earlier that day were the major cause of his subsequent heart attack. Also, Mr. Williford’s admission record dated July 6, 1995, indicated that when he arrived at the hospital there was evidence of congestive heart failure on his chest x-rays.
The Commission also noted that Dr. Frank J. Peretti (the pathologist who performed the autopsy) found several physical problems with the deceased’s heart. The record does reveal that Dr. Peretti found chronic pulmonary disease, hypertension, chronic renal insufficiency, and he noted the deceased’s history of insulin dependency. The Commission opined:
As we interpret Dr. Peretti’s deposition testimony in its entirety, we understand Dr. Peretti’s autopsy to have indicated that Mr. Williford’s health in general (and the condition of his heart and his coronary arteries specifically) was so far compromised by preexisting medical conditions by July 6, 1995, that Mr. Williford was likely to experience a myocardial infarction at any time with no precipitating event, and that his condition was so far compromised even the slightest exertion could induce an infarction.
While giving credence to Dr. Peretti, the Commission apparently, however, failed to consider Dr. Peretti’s entire report. In the autopsy report Dr. Peretti concluded:
In summary, this individual had evidence of severe pre-existing cardiovascular disease and a 20 year history of insulin dependent diabetes mellitus. He was undergoing rigorous physical exercise which was required to maintain his position as a North Litde Rock Fireman. These exercises are responsible for putting excessive stress on his already compromised heart. It is my opinion based on reasonable medical certainty that he sustained his myocardial infarction during the physical workout as documented by his initial clinical presentation and autopsy findings. It is clear that the strenuous workout was the major cause in precipitating the myocardial infarction.
In Dr. Peretti’s deposition testimony, he said:
Well, you have to take the whole situation in perspective. Here you have a man before he began his testing allegedly had no cardiovascular complaints, such as chest pains, okay? He goes in there, he’s under the stress doing all these exercises for the agility test, and then develops all the symptomology.
The heart attack is clearly within twenty-four hours, it’s an evolving heart attack. And I think, you know, my opinion is, with a reasonable degree of medical certainty, is that the strenuous workout was about ninety-five to a hundred percent (95%-100%) contributed to it, because he was fine beforehand. He was fine. He was walking around, no chest pains, no complaints.
After reviewing the entire record, we do not believe that reasonable minds could reach the • same conclusion as the Commission with this persuasive evidence before them. Thus, we find that there is no substantial basis for the Commission’s decision that Mr. Williford’s activity on July 6, 1995, was not the major cause of his heart attack.
Reversed and remanded for an award of benefits not inconsistent with this opinion-.
Arey and Bird, JJ., agree. | [
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Margaret Meads, Judge.
Appellant, Laurie Cleek, suffered an admittedly compensable injury on March 22, 1994, when she slipped and fell on a staircase at work, landing on her buttocks and her lower back. She was seen at the Medi-Quick Clinic on March 24, 1994. She was seen by Drs. Lundeen and Kendrick after her initial Medi-Quick visit, and she continued to see Dr. Kendrick through February 1996.
Appellee paid all of appellant’s medical expenses after her March 24, 1994, visit to Medi-Quick, with the exception of her last visit to Dr. Kendrick in February 1996; however, it contended that all expenses paid after March 24, 1994, approximately $2,339.25, were paid in error because the medical treatment rendered by Drs. Lundeen and Kendrick was not reasonable and necessary. Appellee did not request reimbursement from appellant of these monies but asked that if it were determined that appellee owed the amounts already paid, the administrative law judge (ALJ) allow a credit to appellee for such payments.
The ALJ found that the medical treatment rendered to appellant was reasonable and necessary, and that appellee was responsible for such expenses, including the $35.00 expense of appellant’s last visit to Dr. Kendrick in February 1996. The ALJ also awarded appellant’s attorney a one-half fee based on a recovery of $35.00, reasoning that appellant had previously been paid for all other expenses and “there was no gain to the claimant with the exception of an unpaid bill in the amount of $35.00.” The Commission affirmed and adopted the ALJ’s opinion and awarded appellant’s attorney an additional $250.00 fee pursuant to Ark. Code Ann. § ll-9-715(b) (Repl. 1996). It is from this decision that appellant brings her appeal, arguing that there is not substantial evidence to support the Commission’s award of an attorney’s fee based only on $35.00.
On appeal to this court, the evidence regarding a workers’ compensation claim is viewed in the light most favorable to the findings of the Commission. Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997). The question of whether a claim is controverted is one of fact to be determined from the circumstances of each particular case, and the Commission’s finding will not be disturbed if there is substantial evidence to support it. Masonite Corp. v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). There may be substantial evidence to support the Commission’s decision although we might have reached a different conclusion from the one found by the Commission if we were sitting as the trier of fact or reviewing the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
Arkansas Code Annotated section 11-9-715(a)(2)(B)(ii) (R.epl. 1996) provides that “the [attorney’s] fees shall be allowed only on the amount of compensation controverted and awarded.” (Emphasis added.) The American Heritage Dictionary (3rd Ed.) defines “and” as “together with or along with; in addition to; as well as.” Thus, it is not enough that only one component or the other be present, i.e., either controverted or awarded; rather, both components must be present. Here, although the ALJ found that appellee had controverted over $2,300.00 in medical treatment, he awarded appellant $35.00, which was the only medical expense that appellee had not paid. Our legislature’s use of the word “and” between “controverted” and “awarded” in Ark. Code Ann. § 11-9-715(a)(2)(B)(ii) clearly and unambiguously means that attorney’s fees in workers’ compensation cases are contingent upon not only the amount controverted but also the amount awarded, and we cannot hold otherwise. See Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996) (words in a statute must be given their usual and ordinary meaning and if there is no ambiguity a statute is given effect just as it reads); Life Ins. Co. v. Ashley, 308 Ark. 335, 824 S.W.2d 393 (1992) (when the wording of a statute is clear and unambiguous, it will be given its plain meaning); and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979) (when the will of the General Assembly is clearly expressed, the appellate court is required to adhere to it without regard to consequences).
Appellant contends that Aluminum Co. of Am. v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976), is controlling and mandates that an attorney’s fee be awarded based on the entire amount controverted. We disagree. In Henning, appellant-employer had notified appellee that it considered his heart attack to be “personal” and not causally related to his employment duties, and declined to pay any workers’ compensation benefits. Only after appellee had consulted an attorney and a workers’ compensation claim had been filed did appellant accept responsibility for the claim and begin to pay benefits. Our supreme court ruled that appellee’s attorney was entitled to the statutory attorney’s fee authorized by Ark. Stat. Ann. § 81-1332 (Repl. 1960) (the predecessor to Ark. Code Ann. § 11-9-715), finding that appellant had denied liability and clearly refused to pay any benefits. Here, with the exception of the one $35.00 bill, all medical expenses which appellee incurred had been paid by her employer, and appellee sought legal counsel solely to recover the $35.00.
For these reasons, we affirm the award of attorney’s fees based upon the controverted and awarded amount of $35.00.
Affirmed.
Jennings and Stroud, JJ., agree.
Crabtree, Rogers, and Neal, JJ., dissent. | [
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JOSEPHINE LINKER Hart, Judge.
Appellant Patsy Moore, the mother of K.G. and A.S., appeals the termination of her parental rights. For reversal, she raises three points. She argues that the court erred by finding that the Arkansas Department of Human Services (DHS) made reasonable efforts to prevent the initial removal of her children on October 10, 1995. She also maintains that the court erred by finding at the disposition hearing held on September 25, 1997, that DHS had made reasonable efforts to reunite the family. Finally, she asserts that the court erred by finding at the hearing held on November 20, 1998, that appellee presented clear and convincing evidence to support the termination of her parental rights. We affirm.
On September 17, 1995, K.G, the two-year-old daughter of appellant, was admitted to Children’s Hospital with burns covering ten percent of her body and bruises and welts on her back. After DHS was notified of K.G.’s injuries, appellant, then aged sixteen, told police that her daughter’s injuries were caused by Andrew Shelton, her adult, live-in boyfriend and the father of A.S., her infant daughter. She said Shelton had placed K.G. in a bath of hot water, threw her down a half-flight of stairs, and whipped her with a purse strap. Shelton was arrested and incarcerated on charges of first-degree battery.
Appellant refused foster-care placement and continued living with A.S. in the apartment that she had shared with Shelton while K.G. remained in the hospital. DHS opened a protective-services case for the family and provided appellant with in-home, intensive family services. After appellant failed to regularly visit K.G. in the hospital and took no steps to protect her daughters should Shelton be released from jail, DHS petitioned for and obtained emergency custody of both children on October 10, 1995.
Custody of both children was continued with DHS at a probable-cause hearing held on October 16, 1995. At the adjudication hearing held on December 4, 1995, the court again continued the out-of-home placement and adjudicated both children to be dependent-neglected as defined by Ark. Code Ann. § 9-27-303(14) (Repl. 1998). The court found that: (1) K.G. had suffered serious physical abuse, (2) appellant had failed to protect the children, and (3) inappropriate conditions existed in appellant’s home. Thereafter, the court held regular review hearings and, on March 27, 1997, held the permanency-planning hearing mandated by Ark. Code Ann § 9-27-338 (Repl. 1998). Disposition hearings were held on September 25, 1997, and February 19, 1998, for which orders were entered respectively on October 28, 1997, and March 19, 1998.
Two and one-half years after receiving custody of the children, DHS petitioned for termination of parental rights. A hearing on this petition was held on November 20, 1998, and the court entered an order terminating appellant’s parental rights on January 11, 1999. Appellant filed her first notice of appeal on January 20, 1999.
Arkansas Rules of Appellate Procedure — Civil 2(c)(3) provides that orders resulting from adjudication and disposition hearings are final appealable orders where an out-of-home placement has been ordered. Although the adjudication hearing was held on December 4, 1995, the court reserved ruling on the issue of whether DHS had made reasonable efforts to prevent the initial removal of the children until May 30, 1996, when the court entered a ruling favorable to DHS. Appellant appealed neither the adjudication order nor the order filed on May 30, 1996. On September 25, 1997, a disposition hearing was held in which the court continued the out-of-home placement, finding that DHS had made reasonable efforts to provide reunification services. Again, appellant did not appeal from the order entered on October 28, 1997.
Although appellant now asserts that the court erred by finding that DHS made reasonable efforts to prevent the initial removal of the children in 1995, she failed to timely appeal from that order. Further, while appellant asserts the court erred by finding at the disposition hearing held on September 25, 1997, that DHS made reasonable efforts to provide reunification services to the family, she also failed to appeal from that order. Appellant’s failure to appeal from these final and appealable orders deprives this court of jurisdiction to address her first two issues of appeal, and, therefore, we do not address appellant’s first two arguments. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995); Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996).
Appellant also asserts that the court erred by finding that clear and convincing evidence supported the termination of her parental rights. Appellant argues that she was making great strides in learning to parent her children and was “right on the cusp” of having her children returned, that professionals working with her did not endorse the termination of her parental rights, and nothing prevented reunification but a lack of action on the part of persons other than herself. We disagree and affirm.
Arkansas Code Annotated section 9-27-341(b) (2) (A) (Repl. 1998) provides:
[A]n order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(2) Of one (1) or more of the following grounds:
(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent....
“Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction as to the allegation sought to be established.” Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). When the burden of proving a disputed fact in chancery is by clear and convincing evidence, the appellate inquiry is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. J. T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997).In resolving the clearly erroneous question, due regard must be given to the trial court’s opportunity to judge the credibility of the witnesses. Id.
The court’s prior orders required appellant to maintain a stable home, attend counseling, and attend visitation with the children. On November 20, 1998, the date the petition for termination of parental rights was heard, appellant did not have her own home and had not maintained a stable residence. She admitted moving into her grandmother’s home the preceding September, after moving between the homes of several relatives over the past year. Because appellant failed to notify DHS of her change of residence so that transportation could be provided for her and the children, she missed some scheduled counseling appointments and visitation with the children. Further, the record is replete with services and referrals provided by DHS in an effort to rehabilitate the family. Rehabilitative services provided to the family were foster care, day habili-tation, casework services, transportation, counseling, parenting classes and training, visitation, referrals for housing assistance, home evaluations, a psychological evaluation, and educational and vocational services. The court could conclude from the evidence presented that it was appellant’s failure to notify DHS of her changes of address that caused the interruptions in rehabilitative services offered to her. Further, appellant’s inability to parent her children for yet another six months to a year and her failure to provide a stable home for the children does not indicate that she was “right on the cusp” of being able to parent her children.
Although appellant’s therapist, Jean Crume, did not recommend termination of her parental rights, Crume admitted her inability to make an objective recommendation in this case and disclosed that any recommendation that she made would be in appellant’s interest. She then testified that appellant was moving slowly in a positive direction. However, she predicted that it would be another six months to a year before appellant would be able to parent her children. Crume confirmed that she had requested, on at least two occasions, more time to work with the family. Appellant’s assertion that the caseworker, Elizabeth Shack, did not endorse termination of her parental rights is in error. At the hearing for termination of parental rights, Shack recommended that appellant’s parental rights be terminated because of her lack of stability.
In determining whether parental rights are terminated, the rights of the parent “will not be enforced to the detriment or destruction of the health and well-being of the child.” Corley v. Arkansas Department of Human Services, 46 Ark. App. 265, 878 S.W.2d 430 (1994), citing Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986). At the time appellant’s parental rights were terminated, the children were ages five and three and had been in foster care for the majority of their young fives.
Arkansas Code Annotated section 9-27-341 (a) (3) (Supp. 1999) provides:
The intent of this section is to provide permanency in a juvenile’s fife in all instances where 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.
While the rights of the natural parents are not to be passed over lightly, they must give way to the best interests of the children when clear and convincing evidence shows the natural parents are incapable of providing for the reasonable care for their children. Corley, supra. In the case at bar, appellant had eighteen months between the permanency planning hearing and the termination hearing to rehabilitate and correct the conditions that caused removal. As she failed to provide a home and to demonstrate the ability to adequately parent these children after receiving reasonable, rehabilitative services for over three years, we cannot say that the chancellor clearly erred in finding that DHS presented clear and convincing evidence to support the termination of appellant’s parental rights.
Affirmed.
Roaf, J. and Hays, S.J., agree. | [
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BRANDON J. HARRISON, Judge
|,Tonya Mason appeals the circuit court’s order setting visitation and child support. She argues that the circuit court erred in (1) finding that she is required to have a nanny present for visitation with her' son, L.R.; (2) limiting her to one additional visitation per month with her son; and (3) finding that her ex-husband, Jonathan Robertson, expends $3900 per month in extraordinary expenses for L.R. We affirm.
The parties divorced in August 2008 after an eight-year marriage, and they have two children: eight-year-old L.R., an autistic child with special needs, and two-year-old J.R. The parties were awarded joint legal and physical custody of L.R.; they were also awarded joint legal custody of J.R., but Mason received primary physical custody of J.R. Robertson was ordered to pay $4000 monthly in child support for J.R. He was also ordered to pay up to $3000 per month for fees associated with L.R.’s nanny care regardless of which party was taking care of L.R.
Over the next several years, the parties continued litigating issues of custody, child support, and contempt, and in December 2012, an agreed order was entered establishing Robertson as L.R.’s primary physical custodian. Mason was awarded visitation with L.R. on alternating weekends from 12:30 p.m. to 4:30 p.m. on Saturday or Sunday. The order provided that Robertson “will provide' services of his Nanny for the visitation and will pay for the cost, including transportation. If for some reason there is an emergency and their Nanny is unavailable, [Robertson] will promptly notify [Mason] and will reschedule the visitationf.]” Regárding child support, the parties agreed to deviate from the child-support chart “based on the extraordinary medical expenses incurred on behalf of [L.R,].” Mason’s child-support obligation was $487 per month; however, this was offset against Robertson’s child-support obligation, leaving him responsible for child support in the amount of $2200 per month.
The current round of litigation began in January 2015, when Robertson petitioned to modify his child-support obligation. Over the next thirteen months, the parties filed multiple petitions for contempt’, motions to compel, and requests for modification of visitation and child support. The circuit court held a hearing in March 2016, and after receiving testimony and arguments from counsel, the court found,
[W]e’re going to reduce [Robertson’s] monthly income by $3,900 be'cause of the extraordinary expenses that he incurs with the parties’ autistic son, which included such expenses as the nanny .expenses, the pull-ups,. the money .spent driving him around, some Sunshine School expenses, some positive reinfor-cers, sensory supplies, the insurance expense, a small allowance for repairs that are going to have to be made periodically to the home because of the son’s disability, and a small allowance for some additional expenses for vacation.
laThe court also found that Mason could request additional visitation, .with two weeks’ prior notice, but advised her to exercise her visitation on schedule as much as possible. The court stated several times that the parties “have got to learn how to communicate. You have got to follow the order.” Mason also raised the possibility of hiring her own nanny instead of relying on the availability of Robertson’s nanny for visitation, and the court stated, “If you can show me that it won’t harm this child to do that, then I won’t have a problem with it.”
The court entered a written order in August 2016 that included the following findings:
8. That Defendant must, provide two (2) weeks advance notice to Plaintiff when requesting additional visitation. In the event a nanny, is unavailable for Defendant’s requested date, Plaintiff must make the minor child and nanny available at the soonest available time. Defendant may - only exercise one (1) additional, visitation per month and that visitation is not to be used to replace a missed visitation.
10. From the testimony taken in Court has found [sic] that the Plaintiff expends an average of $3,900.00 each month for extraordinary expenses regarding the minor child, [L.R.]. Those expenses are for the payments to nannies, pull-ups, Sunshine Academy tuition, gas. for driving the minor child around to.soothe him, positive reinforcement tools, medical insurance, medical costs, repairs to the home caused by the minor child and cost of additional care for vacation. The Court arrived at this number by taking an average of those expenses over the last three (3) years. The Court finds that the Plaintiff is entitled to a reduction in his child support of forty-five percent (45%) of said amount.
Going forward, the Parties should use a rolling three (3) year average dropping off the latest year and adding the current year to adjust the $3,900.00 amount. The $3,900.00 a month cannot exceed or be lowered by six percent (6%) increase annually without either Party requesting further relief from the Court.
This- Court has found that the Plaintiff has gross income for 2015 of $520,433.00 and is entitled to allowable deductions totally [sic] $175,650.00 | Reaving him a take-home pay per month of $28,686.00 which translates to a child support obligation of $4,250.00 for him less an imputed child support obligation of the Defendant of $623.00 ($65,000.00 gross, minus 25% for taxes). From that the Court deducts forty-five percent (45%) of the $3,900.00 average for special expenses leaving a child support obligation to the Plaintiff for the minor child, [J.R.], of $1,950.00 effective May 1, 2016.
Mason has timely appealed from this order.
The same standard of review applicable to the modification of custody applies to the modification of visitation. We consider the evidence de novo. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. We will not reverse the circuit court’s findings unless they are- clearly erroneous. Id. When the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the 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. Id.
Mason first argues that the circuit court erred in finding that she is required to have a nanny present for visitation with L.R. As noted above, the 2012 agreed or der provided that Robertson “will provide services of his Nanny for the visitation and will pay for the cost, including transportation. If for some reason there is an emergency and their Nanny is unavailable, [Robertson] will promptly notify [Mason] and will reschedule the visitation[.]” At the March 2016 hearing, Mason argued that this language did not require a nanny to be present for visitation, but the court disagreed and said, “my understanding of that order was that the nanny was going with the minor, because it was necessary. ... I interpreted the order to mean that he was paying for it because of the autism, that the nanny was going.”
Mason now argues that this interpretation “denies [her] access to her child unless her former husband provides nanny services for the visit.” She contends that she has never been |fifound unfit and that the court never made a finding that L.R. requires the services of any specialized caregiver. Therefore, she argues, the court’s imposition of the nanny requirement is not supported by any change in circumstances and was an abuse of discretion.
We disagree with Mason’s argument. First, the 2012 order essentially states that a nanny shall be present when Mason exercises visitation, otherwise it will be rescheduled, and Mason agreed to that. Thus, the circuit court did not err in interpreting the 2012 order to require a nanny to be present’ for Mason’s visitation with L.R.. It is true that Mason is not an unfit parent, and the circuit court may not have made a specific finding about a “specialized caregiver,” but it did mention more than once the importance of consistency when dealing with an autistic child and that “it really needs to be the same nanny if at all possible.” Finally, contrary to Mason’s assertion, the circuit court was open to the possibility of Mason hiring her own nanny for visitations if Mason can show that it will not negatively affect L.R. Thus, we hold that the circuit court did not clearly err in its ruling.
Mason next argues that the circuit court erred in limiting her to one additional visitation per month. The 2012 agreed order provided, that Mason “may have additional visitation as agreed upon by the Parties” and that Mason would pay the cost of the nanny for the additional visitation. At the March 2016 hearing, the circuit court stated that it was modifying the provision on the additional visitation because the parties could not “communicate well enough just to say additional visitation if you- ask and it’s agreed upon.” As explained above, the court found that Mason could request additional visitation two weeks in advance, but the court made clear that it did not want this additional visitation to be used to make up missed visitation: “[I]f every time she misses then she asks for this | ^additional visitation, I’m going to frown upon that. I’m going to come back and say no, that’s not right. ... I just don’t want that to be on a consistent basis; every time I miss I’m going to ask for additional visitation.” The written order allowed Mason one additional visitation per .month and noted that “that visitation is not to be used to replace a missed visitation.”
Now, on appeal, Mason argues that there was no finding in the August 2016 order that “justified these modifications to the Court’s previous orders regarding additional visitations,” so the court clearly erred. 'But Mason’s argument ignores the primary reason for the modification: the parties’ inability to communicate, on which the court made clear findings. For example: “I don’t think the parties can communicate -well enough just to say additional visitation if you ask and it’s agreed upon.” “I think both of you have been disingenuous to this Court on a lot of things, be cause you-all don’t like each other. That’s real clear. You-all cannot communicate.” “I don’t know exactly what’s going on, but you cannot communicate. So common sense kind of goes out the window and all we’re left with is this, order, and we have to hold everyone’s feet to. the fire and follow it as closely as possible[.]”
A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order, Baber, supra. The primary consideration regarding visitation is the best interest of the child. Id. Important factors the court .considers in determining reasonable visitation are the wishes of the child, the capacity' of the party desiring visitation to supervise and care for the child, problems of transportation and prior [7conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. Considering this standard of review on setting visitation and the circuit court’s numerous findings on the parties’ inability to communicate, we affirm the circuit court’s ruling.
For her final point on appeal, Mason asserts that the circuit court erred in finding that Robertson expends $3900 per month in extraordinary expenses for L.R. As noted above, the parties agreed in 2012 to deviate from the child-support chart based on the “extraordinary medical expenses” that Robertson incurred on behalf of L.R. That order noted that the parties “deducted the cost for insurance ($718.00 per month), one-half (1/2) of the costs for nannies, other than monies paid to Plaintiffs spouse for [L.R.] ’s care ($700.00 per month), and one-half (1/2) of over the counter medications, diapers, and other items required for [L.RJ’s care (an agreed upon estimate of $150.00 per month).” These expenditures totaled $1568 per month.
In January 2015, Robertson asked that his child-support obligation be further reduced or eliminated because his expenses for L.R. had increased. At the March 2016 hearing, Robertson testified and introduced an exhibit detailing his expenses for L.R., including the nanny, Pull-Ups, bathroom supplies, pool care, clothes, positive reinforcers, and sensory supplies, which he said totaled over $4400 per month.
The. court decided to credit Robertson with $3900 in extraordinary, expenses, specifically for “payments to nannies, pull-ups, Sunshine Academy tuition, gas for driving the minor child around to soothe him, positive reinforcement tools, medical insurance, medical costs, repairs to the home caused by the minor child and cost of additional care for vacation.” The court explained that it arrived at this number by taking an average of those expenses over the last three years and that the parties should use a rolling three-year average of these expenses to adjust the $3900 amount each year. Ultimately, Robertson’s child-support obligation was reduced from $2200 to $1950.
On appeal, Mason argues that the court’s order is riot supported by the evidence and lacks specificity. -We disagree. The court’s order was supported by Robertson’s testimony and the exhibits introduced at the hearing, and the court specified which expenses were included in its computation. In child-support determinations, the amount of child support lies within the sound discretion of the circuit court, and the lower court’s findings will not be reversed absent an abuse of discretion. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). We hold that the circuit court did not abuse its discretion in this case and affirm.
Affirmed.
Vaught and Brown, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
| Mason Jones and Amanda Self appeal a Pulaski County Circuit Court order terminating their parental rights to their son, G.J. Jones challenges both the trial court’s findings of statutory grounds and its best-interest determination, while Self challenges only the statutory grounds for termination. We affirm.
I. Facts
The Arkansas Department of Human Services (the Department) initiated contact with Jones and Self in March 2015, due to a report of inadequate supervision and substance misuse. The Department pursued efforts to keep G.J. in the home by means of a safety plan. Jones and Self agreed to remain drug free and that G.J. would be supervised by a sober adult at all times. In April 2015, both Jones and Self tested positive for illegal substances, and the Department opened a protective-services case. Eventually, G.J. was brought into care on May |¾1, 2015, due in part to the continued drug usage by the parents and the Selfs failure to attend AA/NA meetings. The court adjudicated G.J. dependent-neglected on July 1, 2015, based on a stipulation of neglect and parental unfitness caused by the parents’ drug use. The court continued custody in the Department and listed the goal of the case as reunification with a concurrent goal of adoption.
The court conducted a review hearing in October 2015, where it changed the goal of the case to adoption with the concurrent goal of reunification. The court acknowledged that the initial goal was reunification and found that the Department had made reasonable efforts to provide services and to achieve that goal. Despite the Department’s provision of services, the court noted that the parties were halfway through the case, and their issues were no closer to being resolved. The court stated that it wanted to see that the parents had stable housing and employment and that their medical issues were being addressed. The court found that neither Jones nor Self was in compliance with the case plan and that they were just playing games. The court noted that both parents needed to overcome their drug habits and that prescribed medications could affect their ability to parent as much as illegal substances could. Specifically, the court stated that Jones needed to bring proof of what medication he was on, why he needed it, and whether his conditions, diagnoses, and prognoses were conducive to being able to raise a child. The court indicated it suspected Jones was just trading one addiction for another. The court concluded that there was no evidence that Jones or Self had shown progress or any benefit from the services they had received; instead, they were just | ¡¡going through the motions. As a result, the court authorized the Department to file a termination petition in the case.
The Department filed a petition to terminate parental rights on March 16, 2016—less than one year from the date of removal. As to both parents, the Depart ment alleged the following grounds for termination: (1) subsequent other factors warranted termination and (2) aggravating circumstances (i.e. that there was little likelihood that services to the family would result in reunification). As to Self, the Department cited her suspected continued drug use, her lack of compliance with the court’s orders and case plan, her lack of visitation with the child, her lack of stable housing, her failure to keep the Department informed of her location, and her failure to follow through with referred services as the basis for its subsequent-other-factors allegation. As to Jones, the Department listed the following subsequent factors: his failure to follow through with counseling, his continued drug usage, and his failure to visit the child. As to the aggravated-circumstances ground, the Department alleged that neither Jones nor Self had availed themselves of the services most likely to result in successful reunification and had faked to visit or provide any material or emotional support to the child.
A combined permanency-planning and termination hearing was held on April 18, 2016. After hearing the testimony and reviewing all the evidence presented, the trial court entered an order terminating the parental rights of both Jones and Self. The court found that the Department had proved as to both parents that subsequent other factors existed to support termination, as well as the aggravated-circumstances ground. The court further found that termination was in the best interest of the child; that he was adoptable; and that he would be ^subject to potential harm if returned to the custody of his parents. Both Jones and Self appeal from this order terminating their parental rights.
II. Standard of Review
The rights of natural parents are not to be passed over lightly. The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a heavy burden placed on the party seeking to terminate the relationship. Id. In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) 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. Ark. Code Ann. § 9-27-341 (b)(3)(A)(i) & (ii) (Repl. 2015). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). 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 Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007).
On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t of Human Servs., 2016 Ark. App. 443, 503 S.W.3d 96. 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, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
III. Statutory Grounds
The court terminated the parental rights of Jones on both the subsequent-other-factors and the aggravated-circumstances grounds. Jones challenges both statutory grounds found by the trial court. However, only one ground must be proved to support termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918. Because there was sufficient evidence to support the aggravated-circumstances ground, his challenge fails.
The court found the statutory ground of aggravated circumstances against Jones by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A). “Aggravated circumstances” means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful, reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(3)(B)(i), Here, the court found little likelihood that services to Jones would result in successful reunification. We agree.
Jones admitted having a drug problem. At the review hearing in October 2015, the court specifically informed Jones that-he needed to address his drug usage, both prescription and illegal, and he failed to do so. Jones argues that the Department failed to provide him with the appropriate services to remedy his condition—specifically, a drug-and-alcohol assessment and a drug-treatment program. However, it is undisputed that Jones had the benefit of some ^treatment, but there was no evidence that he had completed the treatment provided. Instead, he admitted driving under the influence of Xanax and to relapsing twice, with each relapse lasting approximately one month. Additionally, he did not have stable employment and had no proof of his current employment because he was “being paid under the table” at his current job. The court found that the current case had been ongoing for almost a year, and Jones was no closer to resolving his issues than he was at the inception of the case. Based on these factors, there was sufficient evidence to support the court’s aggravated-circumstances ground for termination. Because only one ground is necessary to support termination, Reid, supra, we need not analyze the other ground found by the trial court to support termination.
Self also challenges both statutory grounds found by the trial court. She first argues that, because the children were removed from her custody due to her drug usage, her continued drug usage cannot serve as a subsequent other factor for purposes of termination. She is correct that her continued drug usage alone cannot ■ be used to satisfy the subsequent-other-factors ground. However, we need not decide whether her drug usage, when combined with other factors, is sufficient, because, as with Jones, there was sufficient evidence of aggravating circumstances to support termination.
Self, too, suffers from drug addiction. At the beginning of the case, Self was in and out of treatment facilities and continued to test positive for various controlled and illegal substances throughout the casé. She claimed that she suffered from chronic pelvic pain for which she received some prescription opioids, but the evidence showed that she had yet to follow through with treatment for her condition or with chronic-pain management. She 17finally completed an inpatient treatment at Omart for her substance-abuse addiction, but failed to follow through with the recommended outpatient treatment and did not consistently attend AA/NA meetings after her release. Nor could she, on being questioned by the court, specify which step she was on in her 12-step program. In addition to her addiction issues, the evidence presented revealed that she had not obtained or maintained stable employment or housing and that she had been arrested for shoplifting. Additionally, because of her positive drug screens, she had not visited the child since he was removed from her custody. Based on these facts, there was sufficient evidence on which the court could find that there was little likelihood that further services would result in a successful reunification.
IV. Best Interest
Finally, Jones challenges the trial court’s best-interest findings—specifically, the trial court’s finding of potential harm. Jones argues that there was insufficient evidence to support the trial court’s potential-harm finding. In support of his argument, he highlights his testimony that he and the child had a close relationship, that the child was upset when he was removed from the family, and that the child was happy to see him during visitation. He states that, because he was not offered long-term treatment and the caseworker had not inspected his home for appropriateness, her testimony regarding potential harm could not withstand scrutiny and was, at best, an uninformed opinion. Even assuming Jones’s arguments are true, he does not address the effect of his continued drug usage as being a potential harm to the child. This court has consistently noted that continuing drug use demonstrates potential harm |Rto children. See Jackson v. Ark Dep’t of Human Servs., 2016 Ark. App. 440, at 7; Eldredge v. Ark. Dep’t of Human Servs., 2014 Ark. App. 385, 2014 WL 2807960; Davis v. Ark. Dep’t of Human Servs., 2009 Ark. App. 815, 370 S.W.3d 283; Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004). Jones’s continued use of illegal drugs alone is contrary to the child’s best interest and supports the trial court’s finding of potential harm.
Affirmed.
Glover and Brown, JJ., agree.
. Jones never argued to the trial court that the Department had failed to provide him with such services.
. Because Jones does not challenge the adopt-ability finding, we need not address this factor. | [
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ROBERT J. GLADWIN, Judge
11 This is an appeal of a domestic-relations case involving Denee Ellis and Mike Ellis. Both Mike and Denee appeal the circuit court’s orders, and their arguments primarily relate to the division of property and Mike’s child-support obligation. Mike also challenges the circuit court’s refusal to hold Denee in contempt of court. After considering the merits of the appeal, we affirm in part and reverse and remand in part on direct appeal and reverse and remand on cross-appeal.
I, Background
Denee and Mike married in November 1996, and had two children during their marriage. Mike is a farmer, and Denee is a teacher. In July 2009, Mike filed a complaint for. divorce from Denee. He later amended his complaint and requested an unequal ^division of the marital property. Denee disputed Mike’s entitlement to an unequal division of the marital property.
The circuit court held a bench trial over the course of seven days in 2011. The majority of the trial testimony pertained to the disposition of property. At issue was the disposition of the parties’ two houses— one on Surridge Road and one on Brandi Trail. Additionally, the circuit court was tasked with dividing items of personal property including household goods and vehicles. Most significantly, the circuit court was required to dispose of entities that managed farm land and equipment— specifically Ellis Corner Farm, LP (Ellis Corner), Honeybaby Partnership (Honey-baby), and Sweetie Pie Partnership (Sweetie Pie).
Honeybaby and Sweetie Pie are marital property subject to division. The parties contest whether any portion of Ellis Corner is marital property. During Denee and Mike’s marriage, Mike’s parents gifted 52 percent of Ellis Corner to Mike and 48 percent of Ellis Corner to his brother Danny. Later, Danny transferred his 48 percent share of Ellis Corner to Mike, and Mike and Denee cosigned a loan to pay Danny. Mike asserted the gift from his parents of 52 percent of Ellis Corner was his nonmarital property, and Denee did not challenge this. However, the parties dispute whether any of the 48 percent share of Ellis Corner acquired during the marriage was marital property subject to division.
Ultimately, the circuit court adjudicated the issues in this case in a piecemeal fashion. The first order entered by the circuit court was a decree of divorce in June 2011. Later, in August 2011, the circuit court entered an order entitled “Visitation Order” ^setting out Mike’s visitation schedule with the two minor children. The next order entered by the circuit court that is pertinent to our review is an order to show cause filed in March 2012 in response to Mike’s motion for contempt in which he accused Denee of lying under oath.
Time passed, and in March 2014, more than two and a half years after the trial had concluded, the circuit court circulated a memorandum of decision wherein it ordered that Denee would convey all her interest in the marital property relating to the farming operations to Mike in exchange for a sum of money. The circuit court did not determine the amount of money Mike owed Denee to account for her marital interest in the farming operations. Instead, it left a blank space in the memorandum of decision and indicated that it needed assistance from the parties to determine the amount Mike owed De-nee.
Then, in February 2015, three and a half years after the trial, the circuit court entered an order that purported to equally divide the parties’ property and set Mike’s child-support obligation. The circuit court found Mike’s 52 percent share of Ellis Corner that he received as a gift from his parents was his nonmarital property. However, it found the 48 percent share of Ellis Corner he acquired during the marriage was marital property subject to division. The circuit court awarded Mike all interest in Ellis Corner, Honeybaby, and Sweetie Pie and ordered Mike to pay Denee $816,511.50 for her marital share of these entities. In addition, the circuit court awarded Mike the house on Surridge Road and Denee the house on Brandi Trail and found that each party would have the household furnishings, equipment, and vehicles in their possession.
|/The court entered another order in April 2015 that included a Rule 54(b) certificate and attempted to fully and finally resolve all pending issues before the court. Ark. R. Civ. P. 54(b) (2016). Subsequently, both Mike and Denee appealed. Our court dismissed the first appeal for lack of juris diction. Ellis v. Ellis, 2016 Ark. App. 411, 501 S.W.3d 387. In our opinion, we acknowledged that the circuit court failed to adjudicate custody and to formally rule on Mike’s motion for contempt. The circuit court resolved these issues in an order entered in November 2016. It adjudicated custody in favor of Denee and denied Mike’s motion for contempt. Once again, Mike timely appealed, and Denee timely cross-appealed.
II.Issues on Appeal
On direct appeal, Mike raises nine issues. He argues the circuit court erred by (1) finding his purchase of Danny’s 48 percent share of Ellis Corner was marital property; (2) finding that 52 percent of the acquired 48 percent share of Ellis corner was marital property; (3) equally dividing the marital property; (4) determining that the Jeep Liberty was a marital asset; (5) failing to give him credit for house payments he made on the Brandi Trail property after the entry of the divorce decree; (6) failing to divide Denee’s retirement benefits; (7) failing to divide the parties’ household goods and furnishings; (8) refusing to hold Denee in contempt of court; and (9) improperly calculating prospective and retroactive child support.
15Denee raises two issues in her cross-appeal. She contends that the circuit court erred (1) in its calculation of the value of the property the parties owned on Sur-ridge Road and (2) in awarding Mike credit against child-support arrearages.
III.Standard of Review
Our court reviews divorce eases de novo on appeal. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766. With respect to division of property, a circuit court’s findings of fact should be affirmed unless they are clearly erroneous or clearly against the preponderance of the evidence. Id. Our court applies the same standard when- analyzing the propriety of a child-support order and will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Wright v. Wright, 2010 Ark. App. 250, 377 S.W.3d 369. When considering the contempt issue, we limit our review to whether there has been an abuse of discretion. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986).
IV.Mike’s Direct Appeal
A. Whether the 48 Percent Share of Ellis Corner Was Marital Property
Mike unsuccessfully argued at trial that the 48 percent share of Ellis Corner that was purchased from his brother Danny was his nonmarital property. Arkansas Code Annotated section 9-12-315(b) (Repl. 2015) defines marital property as “all property acquired by either spouse subsequent to the marriage.” There is a presumption that all property acquired during a marriage is marital property. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Once one party has shown that property was acquired during the | ¿marriage, the burden shifts to the other party to prove by clear and convincing evidence that the property is nonmarital. Carroll v. Carroll, 2011 Ark. App. 356, 384 S.W.3d 50.
In support of reversal, Mike emphasizes that Ellis' Corner—not Mike or Mike and Denee—secured the loan to buy Danny’s share of the business. He also points out that Denee did not obligate herself when the loan was refinanced nor did she take part in any of the operations of Ellis Corner. Finally, he highlights his testimony in which he indicated that he thought Ellis Corner was his nonmarital property and that Denee had no connection to its operations.
This evidence is insufficient to require reversal, Danny assigned his interest in Ellis Corner to Mike—not Ellis Corner— during Mike and Denee’s marriage. Thus, there is a presumption that this property is marital. McKay, supra. It was Mike’s burden to.prove by clear and convincing evidence that this property was nonmarital. Carroll, supra. The evidence reflects that Denee signed the original loan to purchase Danny’s interest in Ellis Corner and that the Ellis Corner loan was repaid using marital funds. We cannot say that the circuit court clearly erred by finding that Mike failed to meet his burden of proving the 48 percent share of Ellis Corner was his nonmarital property.
B. Whether 52 Percent of the Acquired 48 Percent Share of Ellis Corner Was Marital Property
Mike’s next point on appeal is related to his first point. He argues that 52 percent of the 48 percent share of Ellis Corner was his. nonmarital property because the loan executed to purchase Ellis Corner was repaid with assets from Ellis Corner. Mike 17contends that the payments on the loan for Ellis Corner are all traceable to his nonmarital assets.
Mike first argues that it was Denee’s burden to prove that this interest was marital. We disagree. Danny assigned his 48 percent interest in Ellis Corner to Mike during the marriage, and all property acquired during marriage is presumed to be marital. McKay, supra. Once a party has shown that property was acquired during the marriage, the burden shifts to the other party to prove by clear and convincing evidence that the property is nonmarital. Carroll, supra.
We are reminded that Denee personally guaranteed the loan used to finance the acquisition of Danny’s 48 percent of Ellis Corner. That evidence alone is sufficient for us to reach the conclusion that the circuit court’s.decision was not clearly erroneous. Additionally, Mike’s tracing argument is problematic. Our supreme court in Canady v. Canady stated that “[Unquestionably the tracing of money or other property into different forms may be an important matter, -but tracing is a tool, a means to- an end, not an end in itself.” 290 Ark. 551, 555-56, 721 S.W.2d 650, 652-53 (1986). When transactions result in great difficulty in tracing the manner in which nonmarital and marital property have been commingled, the property acquired in the final transaction may be declared marital property. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). Mike argues that because Ellis Corner repaid its loan with rental income, 52 percent of the 48 percent interest was traceable to his non-marital property. His argument required the circuit court |sto analyze rent payments made to Ellis Corner that were then used to pay the loan on Ellis Corner. Those rent payments all came from Honeybaby and Sweetie Pie; both of which are marital property. For this additional reason, we hold that the circuit court did not clearly err.
C. Equal Division of Marital Property
Mike also challenges the circuit court’s denial of his request for an unequal division of the marital property. Arkansas law provides that a circuit court should divide marital property equally unless the circuit court finds that equal division is inequitable. Ark. Code Ann. § 9-12315(a)(1)(A). There is a presumption that an equal division of marital property is fair and equitable. Davis v. Davis, 2016 Ark. App. 210, 489 S.W.3d 195. If inequitable, the, court is to divide the property equitably taking into consideration nine statutory factors enumerated at Arkansas Code Annotated section 9-12-315(a)(1)(A). When an unequal division of marital property is awarded, the court must state its basis and reasoning for not dividing -the marital property equally between the parties, and the basis and reason should be stated in the order. Ark. Code Ann. § 9-12-315(a)(1)(B).
Preliminarily, Mike argues that even if equal division of the.parties’ marital property was not erroneous, the decision must still be . reversed because the circuit court did not consider each of the factors enumerated in Arkansas Code Annotated section 9-12-315(a)(1)(A) when -it divided the parties’ property. Mike’s argument is without merit. Arkansas Code Annotated section 9-12-315(a)(1)(B) requires only that findings of fact be made when an unequal division of property is awarded.
| nWith this conclusion reached, we turn our attention to the propriety of the decision to equally divide the parties’ marital property. Mike’s evidence in favor of an unequal division of property focuses on his contention that he was solely responsible for the growth of the parties’ wealth and that, in addition to not contributing to their increase in wealth, Denee was a bad homemaker. Denee contradicted this with evidence of her involvement in their children’s lives and her services to the family. Additionally, there is ample evidence of the disparity in the parties’ future earning capacity and other factors that support an equal division of property. We hold the circuit court did not clearly err in awarding an equal division of the marital property-
D. The Jeep Liberty
The circuit court awarded each party his and her respective vehicles— Denee received the Chevrolet Suburban that was a gift from her parents, and Mike received the Jeep Liberty he used as his primary vehicle. Mike contends the circuit court erred because the value of the Jeep Liberty was included in the appraisal of the marital assets. It had an appraised value of $5,000, and he argues .that he is entitled to a $2,500 credit against Denee’s judgment.
The order disposing of the vehicles did not determine 'that the Jeep was Mike’s nonmarital property; it merely established that he was entitled to it. The order specifically provides, “[Denee’s] Chevrolet Suburban vehicle is declared to be her own separate property, and the vehicle that plaintiff uses as his primary personal vehicle is declared to be his own separate property.”: The evidence shows that the Jeep Liberty was marital |inproperty subject to division by the circuit court. Accordingly, the inclusion of the Jeep Liberty in the appraisal of marital assets was proper, and we cannot say that the circuit court clearly erred in requiring Mike to compensate Denee for one-half of its value.
E. Division of the Brandi Trail House Payments
Mike and Denee equally split the house payment on the Brandi Trail property until , the circuit court awarded it to Denee. Mike asked the circuit court to give him credit against his child-support arrear-age for. the payments he made on the indebtedness on the Brandi Trail property. The court declined to award him any credit for these payments. He contends this decision was clearly erroneous and amounts to a windfall to Denee.
This issue arises because of the large amount of time that passed between the entry of the divorce decree and the division of the parties’ property. The parties’ divorce decree was entered on June 20, 2011, and Mike continued to make one-half of the Brandi Trail house payments for over three years until the circuit court ultimately ruled that Denee would receive the Brandi Trail property in February 2015.
We are sympathetic to Mike’s position. However, his payments toward the indebtedness on the Brandi Trail property were voluntarily made. No order required the parties to share the house payment. Our law provides that, “[ajlthough we are not insensitive to the generosity of the noncustodial parent ... who provides support for his children additional to that expressly ordered by the court, we do not, as a matter of law, give credit for voluntary expenditures.” Glover v. Glover, 268 Ark. 506, 508, 598 S.W.2d 736, 737 (1980). Accordingly, it was not clear error to refuse to give him credit for those payments.
F. The Division of Denee’s Retirement Benefits
During the parties’ marriage, De-nee accrued retirement benefits as a result of her employment as a teacher. Ordinarily those retirement benefits are marital property subject to division by the circuit court. Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999). However, the circuit court refused to divide Denee’s retirement benefits finding that there was no evidence of their value or other details of the retirement plan. Mike contends this was clear error.
Our caselaw provides that a court does not clearly err in declining to divide an asset if the complaining party fails to produce sufficient evidence at trial on the issue. Coombe v. Coombe, 89 Ark. App. 114, 201 S.W.3d 15 (2005). Evidence was elicited from Denee that she taught for seven of her twelve years of marriage and that she accrued retirement benefits during that time. However, there was no evidence regarding Denee’s years of service, whether her retirement plan was contributory, the dates and amounts of any contributions she made, and, most importantly, the present value of the asset. Accordingly, we hold that the circuit court did not clearly err in refusing to divide this asset.
G. The Division of Household Goods and Furnishings
lii>The circuit court awarded each party the household goods in his or her possession. Mike argues that this amounted to an improper unequal division of marital property in Denee’s favor. Mike contends he provided the only testimony regarding the value of the household goods and furnishings, testifying that they were worth “$20,000 or so.” Mike asks that the circuit court’s decision on this issue be reversed and that (1) he be awarded a credit for his portion of the household goods and furnishings or (2) this case be remanded to the circuit court for findings as to why the household goods were not divided equally.
Arkansas Code Annotated section 9-12-315(a)(l)(A) provides that “at the time a divorce decree is entered, all marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable.” Nevertheless, our property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).
Here, the parties had two marital homes. The court’s February 2015 order awarded each party a house and also all the household goods and furnishings that were currently in each party’s possession. Mike correctly asserts that he was the only witness to place a value on their household furnishings, but the court was not required to accept his testimony as true. See Burnett v. Philadelphia Life Ins. Co., 81 Ark. App. 300, 101 S.W.3d 843 (2003). The parties had a lengthy separation, and each was living in a separate house. It is reasonable to conclude that each party had a significant amount of household goods and | isfurnishings and that each party had a roughly equal amount of the personal property that was marital. We hold that the circuit court did not clearly err when it awarded each party the household goods and furnishings in each’s possession.
H. Contempt
Mike contends the circuit court erred in refusing to hold Denee in contempt for lying under oath. Mike claims Denee lied in a deposition by stating she had not had sexual relations with a man named Mike Miller. During the trial, De-nee issued a retraction to the answers in her deposition regarding whether she had sexual relations with Mike Miller.
Although it seems clear that De-nee was untruthful in her deposition, we hold that the circuit court did not abuse its discretion by refusing to place her in contempt for her untruthfulness. “The making of a false statement may constitute contumacious conduct if it obstructs the judicial process.” Jolly v. Jolly, 290 Ark. 352, 356, 719 S.W.2d 430, 432 (1986). Here, we are lacking evidence- that shows Denee’s alleged contemptuous conduct obstructed the judicial process. Mike alleged that her lying “seriously hampered [his] preparation for the visitation hearing.” However, there is no evidence that Denee’s alleged lies interfered with his ability to present his case, and when questioning Denee at trial, Mike’s counsel asked no questions regarding Mike Miller. _ ,
I. Mike’s Child-Support Obligation
Mike argues the circuit court erred in its calculation of his child-support obligation. He contends that (1) the circuit court did not properly compute his monthly child-support obligation in accordance with Administrative Order No. 10 because it failed to deduct for 114medical-insurance premiums he paid, his tax obligations, and the house payments on the Brandi Trail house, and (2) the court failed to make findings supporting its child-support calculation. Mike asks this court to remand the issue of child support to the circuit court.
In determining an appropriate amount of child support, we are to refer tó the family-support chart contained in Administrative Order No. 10. Ark. Code Ann. § 9-12-312(a)(2). Pursuant to Administrative Order No. 10(1), “it is a rebuttable presumption that the amount of child support calculated pursuant to the ... family support chart is the amount of child support to be awarded.” “If the order varies from the guidelines, it shall include a justification of why the order varies.” Id.
Our review indicates the circuit court intended to determine Mike’s monthly net income and then set support in accordance with Administrative Order No. 10. The circuit court found that Mike’s “monthly attributable income” was $6,046 and set Mike’s child-support obligation for two children at $1,270 per month. Assuming arguendo that $6,046 is an accurate calculation of his net monthly income, the circuit court failed to set Mike’s child-support obligation in accordance with the Administrative Order No. 10.
Administrative Order No. 10(II)(b) provides that “to compute child support when income exceeds the chart, add together the maximum weekly, biweekly, semimonthly, or monthly chart amount, and the percentage of the dollar amount that exceeds that figure 1 Housing the percentage above based upon the number of dependents”—in this case, 21 percent. Instead of adhering to, these guidelines, it appears that the circuit court reached its child-support determination by merely calculating 21 percent of Mike’s monthly attributable income of $6,046. For this reason, we reverse and remand the circuit court’s order setting child support.
Turning to the issues raised by Mike, we first consider Mike’s argument that the circuit court erred by refusing to consider the amounts he paid for medical insurance, his tax obligations, and the house payments toward the house on Brandi Trail. We have already discussed the argument relating to the house on Brandi Trail, and it does not support reversal. However, Administrative Order No.' 10(II)(a)(l) & (3) contemplates that money spent on medical insurance and taxes should be deducted from a payor’s income before child support is calculated.
The circuit court’s order provides that Mike “identified amounts paid out of business accounts directly to him or for his personal expenses over a two-year period.” The circuit court then averaged those to reach a “monthly attributable income of $6,046.” Trial exhibits identify personal expenditures made from business accounts and include payments for certain medical expenses. However, it is unclear from our review whether the circuit court deducted all medical-insurance and tax payments made by Mike when it calculated his support obligation, • ‘
In Mike’s final argument relating to his child-support obligation, he challenges the circuit court’s failure to make findings to support its child-support determination. A circuit hficourt is required to make such findings only when the -child support awarded varies from, the amount contemplated. under Administrative Order No. 10. We reiterate that our review indicates that the circuit court unsuccessfully attempted to set child support in accordance with the family support chart found in Administrative Order No. 10, and under those circumstances, a justification for the amount of child support ordered was not required.But assuming the circuit court intended to deviate from the amount of support contemplated by Administrative Order No. 10, the order of child support must still be reversed for failure to include “a justification of why the order varies.” Ark. Sup. Ct. Admin. Order No. 10, § 1.
On remand, we direct the circuit court to adhere to the guidelines of Administrative Order No. 10 when calculating support either by setting an amount pursuant to the order or by including a justification for deviation.
V. Denee’s Cross-Appeal
A, The House on Surridge Road
Denee argues the circuit court erred in its property division because when it divided the parties’ property, it counted the debt on the Surridge Road house twice. We agree.
The circuit court found that the value of the Surridge Road house was $75,000. However, in its February 2015 order, it reduced the value of the Surridge Road property to $39,748 because it took into account that the house was mortgaged to purchase- Honeybaby’s 151 acres. This is problematic because an exhibit to the order also | ^demonstrates that the circuit court took into account the debt on the Surridge Road , house when it determined the value of Honeybaby.
While our property-division statute does not require mathematical precision when dividing property, this court, should reverse the trial court’s property division when it is clearly erroneous. Williams, supra. Here, the division of property is clearly erroneous insofar as the debt associated with the Surridge Road property was counted twice. On this point, we reverse and remand for an order consistent with oui- holding and direct the circuit court to show the value of the Surridge Road house as $75,000.
B. Child Support
The circuit court’s order provides that Mike’s child-support obligation would be retroactive, and Denee was given judgment against Mike for unpaid, retroactive support. The amount of Denee’s judgment was reduced by the amount Mike had paid for Denee’s cell-phone bill from January 1, 2011, to September 30, 2014. Denee argues that the circuit court erred-by giving Mike credit for the money he paid towards the parties’ cell-phone bills.
First, Denee argues that it was error to give Mike credit for the amount he paid for her cell-phone bills because those payments were voluntarily made. “Courts, as a matter- of law, do not give credit for voluntary expenditures.” Glover, 268 Ark. at 508, 598 S.W.2d at 737. However, we disagree with Denee’s assertion that Mike’s payments were voluntary. The parties’ temporary order required Mike to pay her cell-phone bill.
|18Next, Denee argues that the circuit court erred by reopening the record to allow evidence of payments made towards cell-phone bills. A circuit court has •discretion to reopen a record before the entry of a final decree. Tackett v. First Sav. of Ark., F.A., 306 Ark. 15, 810 S.W.2d 927 (1991). Here, we cannot say it was an abuse of discretion to reopen the record because the circuit court ordered Mike to pay Denee’s cell-phone bill; thus, the amount paid by Mike is pertinent to the disposition of the case.
Finally, Denee argues that the circuit court erred by deviating from the guidelines of Administrative Order No. 10 when it gave credit for Mike’s payment of Denee’s cell-phone bills. We agree that to allow credit for. payments of cell-phone bills is a deviation from Administrative Order No. 10. When calculating child support, a circuit court may deviate from the chart-ordered amount for various reasons including “accustomed standard of living.” Ark. . Sup. Ct. Admin. Order No. 10(V)(a)(8). .The parties argue about whether cell-phone bills are an appropriate ground for deviation for accustomed standard of living, but we do not reach that question. When a circuit court deviates from the amount of child support appropriate under Administrative Order No. 1(), it must include "in its order a justification of why the order varies. Ark. Sup. Ot. Admin. Order No.' 10(1). The circuit court’s order includes no such justification. Therefore, we hold that the allowance of a deduction for cell-phone' bills was reversible error and reverse and remand.
Affirmed in part and reversed and remanded in part on direct appeal; reversed and remanded on cross-appeal.
Glover and Hixson, JJ., agree.
. Our court previously acknowledged this error and strongly suggested that the circuit court review its child-support determination. Nevertheless, the circuit court failed to consider the issue. See Ellis, supra. | [
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John F. Stroud, Jr., Judge.
Bruce Barnard was employed as a construction worker by B & M Construction Company on February 10, 1992, when he fell from a steel beam onto a concrete floor, striking his head. He suffered a closed head injury and had headaches and double vision. B & M Construction accepted the claim as compensable and paid temporary total disability and medical benefits. At a hearing before the administrative law judge, Mr. Barnard contended that he was entitled to a physical impairment rating due to loss of vision. The law judge denied and dismissed the claim. After conducting a de novo review, the Workers’ Compensation Commission affirmed and adopted the decision of the administrative law judge. We affirm the denial of the claim.
The claimant raises one point on appeal, stating that he has shown by substantial evidence that he has sustained permanent disability as a result of his admittedly compensable injury. This is not the standard by which we review cases when the Commission has denied a claim. Where, as here, the Commission denies a claim because the claimant has failed to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 887 S.W.2d 543 (1994). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). On appeal, we are required to view the evidence in the light most favorable to the findings and give the testimony its strongest probative force in favor of the Commission’s action. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
The evidence, which includes testimony by the claimant as well as medical testimony and records, shows that the claimant reported headaches and vision problems after the accident. The claimant stated that he continued to have double vision when viewing objects up to four and one-half feet away. Dr. Michael Brodsky followed the claimant at Arkansas Children’s Hospital Eye Clinic. Dr. Brodsky diagnosed the claimant’s vision problem as convergence insufficiency and prescribed reading glasses with prisms incorporated into them in order to see objects closeup and use his eyes together to avoid double vision.
In support of his claim for permanent disability, the claimant refers to his need to wear two pairs of glasses to see properly. He points to the testimony of ophthalmologist Dr. Thomas R. Wallace that a change of glasses would be required for switching from close to distant work, such as when leaving closeup work at a bench to walk across a room. The claimant concludes that he can no longer do construction work because he cannot walk while wearing the prism glasses which he must wear for working with a screwdriver or hammer and nails. The claimant states, however, that he has a riding lawnmower, a push mower, and a leaf mower; that he is able to do lawn work; and that he is able to drive a car.
The medical evidence includes conflicting reports concerning the claimant’s fields of vision. Dr. Wallace, in determining the claimant’s impairment rating, referred to testing the visual fields. His report of March 15, 1994, states:
I have calculated Mr. Barnard’s disability based on my interpretation of Guide to the Evaluation of Permanent Impairment, Third Edition Revised. . . .
Right eye appears to be his worse [sic]. He has 20/20 vision in that eye for no central vision loss. His visual field loss is approximately 47%. This is an inferior hemia-nopia and according to the above mentioned book this entitles him to an addition 10% of loss, so his visual field loss in the right eye is 47% plus 10% or 57%. Combining this with the 57% loss of the right eye using the combined value chart shows a 100% loss in the right eye.
The left eye has no loss of central vision. He has lost 10% visual field with an extra 5% because he has lost an inferior quadrant yielding 15% loss of visual field. Combining these on the combined value chart yields 16%.
When you combine the impairment in the worse eye (right) 100% and the better eye (left) 16% and ... an impairment of the visual system of 38%. . . this shows an impairment of the whole person of 36%.
The claimant’s visual fields were also tested by Dr. George Schroeder, an ophthalmologist, and Dr. John Stuckey, an optometrist. In a letter of June 13, 1994, optometrist Dr. Thomas H. Gulley compares their test results to those which Dr. Wallace obtained. Dr. Gulley states in his letter:
These fields were done on the same type of instrument and the same threshold levels as at Dr. Tom Wallace’s office. As you can see, the results are somewhat different and on both tests, it states there is low patient reliability.
In a letter dated July 21, 1994, Dr. Gulley evaluates the claimant’s corrected vision and refers to the subjective nature of the testing:
This is in response to [respondents’] questions. Bruce Barnard has corrected vision of 20/20 in both eyes. In other words, while wearing his glasses his vision is normal.
The disability rating given by Dr. Tom Wallace is based on the threshold test which is used to determine any deficit in Mr. Barnard’s field of vision. Dr. Wallace did the test on two occasions and the results were different in each instance. I sent Mr. Barnard to Drs. Stuckey and Schroeder on June 9, 1994, to have that test performed. The results of the test performed by Dr. Stuckey and Schroeder are different than those done by Dr. Wallace. And it states on the test form that there is low patient reliability on all the tests. The validity of these tests is based on the answers given by Mr. Barnard. Because the three tests done are all different, none can be said to be a reliable test of Mr. Barnard’s field of vision. In my opinion, from the results of this test, it would be difficult to rate Mr. Barnard with any permanent impairment as a result of the on-the-job injury.
The impairment rating given by Dr. Wallace does not address the claimant’s vision as corrected with glasses. Arkansas Code Annotated § 11-9-521(1987) addresses compensation for scheduled permanent injuries. Subsection (c) states, “In all cases of permanent loss of vision, the use of corrective lenses may be taken into consideration in evaluating the extent of loss of vision.” Dr. Gulley stated that the claimant’s corrected vision was normal.
The Commission found that the claimant had not sustained his burden of proof by a preponderance of the credible evidence of record, and found that the claimant had not sustained any permanent disability as a result of his admittedly compensable injury. The Commission has the duty of weighing medical evidence as it does any other evidence, and the resolution of any conflicts in the medical evidence is a question of fact for the Commission. Bartlett v. Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Jackson v. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). We conclude that the findings of the Commission are supported by substantial evidence.
Affirmed.
Cooper and Griffen, JJ., agree. | [
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Per Curiam.
Appellants have filed a motion for certification to the Arkansas Supreme Court. They contend that the reporter’s notes to Rule 15(b) of Arkansas Rules of Civil Procedure contain an error. Appellants also allege that the chancellor below erred in allowing an amendment to conform the pleadings to the proof during trial after an objection to the proof was made.
Arkansas Rule of Civil Procedure 15(b) states in part:
(b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion.
The reporter’s notes to Rule 15(b) include the following:
2. Section (b) is identical to FRCP 15(b). It follows prior Arkansas law by permitting amendments to conform to the proof adduced at the trial. This rule goes somewhat further, however, by more or less making it mandatory that pleadings be amended to conform to the proof where there has been objection to such proof. Metropolitan Life Ins. Co. v. Fugate, 313 F.2d 788 (C.C.A. 5th, 1963): Bradford Audio Corp. v. Pious, 329 F.2d 67 (C.C.A. 2d, 1968). (Emphasis added.)
Appellants contend that the word “no” should precede the word “objection” in the phrase “where there has been objection to such proof.” Rule 15(b) does seem to require amendment of the pleadings where no objection is made by the other party, but it clearly grants the court discretion in allowing amendments to the pleadings when an objection is made to the evidence as not being within the pleadings. The reporter’s notes, as they now read, seem to mandate such amendments under the circumstance when the Rule gives the court discretion in allowing the amendment. The alleged error would seem to be further substantiated by the citation of two federal cases at the end of the note indicating that objections to the proof were made, but no objections to the proof were made in those cases on these grounds. The notes also say Rule 15(b) of Arkansas Rule of Civil Procedure is identical to FRCP 15(b), but it is not.
The Arkansas Rules of Civil Procedure were adopted by the supreme court pursuant to Act 38 of 1973 and pursuant to the Court’s constitutional and inherent power to regulate procedure in the courts. In re: Rules of Civil Procedure, 264 Ark. 964 (1978). The power to adopt the rules is well-established and grounded in constitutional and statutory authority as well as the Court’s inherent authority. Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992).
Since adopting the rules, the Court has often amended the reporter’s notes by per curiam opinions. See, e.g., In re: Recommendations of the Ark. Sup. Ct. Comm. on Civ. Practice, 315 Ark. 744 (1993); In re: Changes to the Ark. Rules of Civ. P., 307 Ark. 583 (1991); In re: Amendments to the Rules of Civ. P., 283 Ark. 541, 671 S.W.2d XCII (1984); In re: Amendments to the Rules of Civ. P., 279 Ark. 470, 651 S.W.2d 63 (1983).
Appellants have not shown that they suffered prejudice as a result of the alleged error in the notes. Appellants contend in their motion only that trial courts around the state rely upon the notes to Rule 15(b) and that the trial court below erroneously allowed an amendment to conform the pleadings to the proof after timely objection was made. They have not asserted in their motion or their memorandum of authorities that the chancellor relied upon the reporter’s notes in making his ruling. This case does not involve the interpretation or construction of Rule 15(b); therefore, there is no need for certification under Ark. Sup. Ct. R. 1-2(3).
We do, however, agree with appellants that correction of the notes lies within the jurisdiction of the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. l-2(d), and we suggest the court consider an amendment of the notes by per curiam opinion.
Motion denied.
Pittman, J., not participating.
Cooper and Griffen, J.J., would grant motion to certify. | [
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John Mauzy Pittman, Judge.
Katie Bradford has appealed from an order of the Van Burén County Chancery Court allowing her son, appellee, Darrell Bradford, to intervene in his parents’ divorce action. In this order, the chancellor granted appellee specific performance of an oral contract whereby his parents agreed to convey a parcel of real property to him. On appeal, appellant argues that the chancellor erred in allowing appellee to intervene in the divorce case and in granting specific performance of the agreement. We affirm the chancellor’s decision in all respects.
In 1992, appellant and her husband, Emmitt Bradford, verbally agreed to sell appellee a thirty-eight-acre parcel of land adjoining their home for $20,000.00. Appellee paid his parents in full, took possession of the land, and built a shed and a larger building on the property. While the property was being surveyed prior to the execution of the deed, appellee got married. Appellant strongly objected to this marriage and changed her mind about conveying the property to appellee. In order to avoid further conflict, appellee accepted the return of his $20,000.00.
The discord within the family did not abate, however, and appellant sued Emmitt for divorce in August 1993. In December 1993, appellant was granted a divorce. The chancellor, however, specifically provided in the divorce decree that all issues pertaining to the property interests of the parties were reserved for a separate hearing to be held in the near future.
On January 7, 1994, appellee filed a “petition” with the chancery court in the divorce action in which he stated that his father was willing to convey the land but that appellant had refused to do so. Appellee stated that he had obtained appraisals of the two buildings that he had constructed on the property and that their total value was $12,543.00. Appellee requested the chancellor to order his parents to sell him the property as they had agreed or award him the value of the improvements. Appel-lee did not file a separate motion for leave to intervene.
In response to appellee’s petition, appellant argued that appellee was not a party to this case and did not have standing to obtain relief. She admitted that the parties had refunded the $20,000.00 to appellee.
The property issues were tried to the court on March 1, 1994. Appellant pointed out that appellee had not yet been granted leave to intervene. Over appellant’s objection, the chancellor allowed appellee to remain in the courtroom during the hearing.
Appellant testified that appellee had built the small shed on the property before there was any discussion of conveyance. She stated that she had eventually agreed to deed the thirty-eight acres to appellee and had had it surveyed for that purpose. She also admitted that appellee had paid her and her husband $20,000.00. She stated that she had refused to go through with the sale because she did not approve of appellee’s marriage.
Emmitt testified that appellee had bulldozed roads, built two buildings, and cut timber on the property and had paid $20,000.00 for the land. He stated that he had agreed to give appellee his money back to make peace and that he agreed with appellee’s petition for conveyance of the property.
Appellee testified that he had begun building the shed before the parties reached the agreement to sell him the property and had constructed the bigger building after he paid his parents the $20,000.00.
At the conclusion of the hearing, the chancellor stated:
I don’t really like a situation of an individual not having an attorney, because it increases the possibility of reversal and things not being done right. I do appreciate and understand this is a family situation, and I also do appreciate that — how if another lawsuit got started, then it could throw a monkey wrench in the gears of'getting this thing resolved, and even a bad decision is better than no decision . . . and lingering in limbo forever, so I’m going to construe the pleadings liberally and go ahead and affect Mr. Darrell Bradford’s petition as a petition for intervention. I’m going to conform the proof to the pleadings. I’m going to construe his request as a demand for specific per formance in an intervention — a formal intervention, and I’m going to grant his request for specific performance. I don’t know what more evidence or indicia of partial performance there could be, and Miss Bradford openly testified that the only reason it wasn’t consummated was just an act of defiance on her part. And, they, back before any of these pressures were on them, negotiated and came to the conclusion that it was worth twenty thousand dollars ($20,000). . . . They need to go ahead and finish their bargain.
In the order entered April 28, 1994, the chancellor found that appellee had taken possession of the property, had paid the full purchase price of $20,000.00, and had made all improvements thereon. The chancellor granted appellee’s petition for specific performance of the agreement and ordered that, upon appellee’s payment of $20,000.00, a deed be delivered to him. In this order, the chancellor also directed that all of appellant’s and Emmitt’s marital personal and real property be sold at public auction. Appellant filed her notice of appeal on April 29, 1994.
On June 30, 1994, appellant filed a motion under Ark. R. Civ. P. 60(b) to correct the decree. She requested the chancellor to find that the oral agreement to convey the property violated the statute of frauds. This motion was not granted.
For her first point on appeal, appellant argues that, even though appellee filed his petition pro se, he was still required to conform to the Rules of Civil Procedure. In response, appellee states that he is in agreement with this principle. It is true that all litigants, including those who proceed pro se, must conform to the rules of procedure, or else demonstrate good cause for not doing so. Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365 (1994), cert. denied, _ U.S. _, 115 S.Ct. 489 (1994).
In her second point, appellant argues that the chancellor erred in allowing appellee to intervene without strictly complying with the “mandatory requirements” of Ark. R. Civ. P. 24. Appellant argues that appellee was required to file a separate motion for intervention in addition to his petition for specific performance and that his failure to do so requires reversal.
We note that appellant did not articulate this argument before the trial court. Although she argued that appellee had not yet been allowed to intervene, she did not argue that his petition was inadequate under Rule 24. This court has stated that it will not consider arguments on appeal that were not fully developed at the trial level. First Nat’l Bank v. Adair, 42 Ark. App. 84, 854 S.W.2d 358 (1993).
In any event, we would find no error on the facts of this case. It is true that, ordinarily, there must be pleadings in support of the relief awarded by the court. See Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950). However, appellant has cited no case in which it was held that, even though a sufficient claim for relief was filed, it was necessarily error to grant intervention if a document styled “motion to intervene” was not filed. Arkansas Rule of Civil Procedure 8(f) provides that all pleadings shall be liberally construed so as to do substantial justice. Rule 1 of the Arkansas Rules of Civil Procedure provides that the rules shall be construed “to secure the just, speedy and inexpensive determination of every action.” This was expressed in Employers National Insurance Co. v. Grantors, 313 Ark. 645, 652, 855 S.W.2d 936, 940 (1993), as follows: “The objective of our rules of procedure is the orderly and sufficient resolution of disputes.”
Rule 24 of the Arkansas Rules of Civil Procedure provides in pertinent part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute óf this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
It is true that Rule 24(c) requires a party seeking intervention to state in a separate pleading the claim or defense to be advanced. See Schacht v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983). However, we believe that appellee adequately complied with that rule by clearly setting forth his claim for relief within the context of this divorce action. In National Security Fire & Casualty Co. v. Shaver, 14 Ark. App. 217, 686 S.W.2d 808 (1985), this court held that pleadings are for the purpose of informing all the parties what the issues are and, when there is no surprise or substantial prejudice, the court can always and often does treat the pleadings as amended to conform to the proof. “ ‘Defects in pleadings are to be disregarded unless they substantially affect the rights of the adverse party.’ ” Id. at 220, 686 S.W.2d at 810 (quoting Miller v. Hardwick, 267 Ark. 841, 843, 591 S.W.2d 659, 660 (Ark. App. 1980)). Here, it was clear to appellant that appellee sought to intervene and that he sought specific performance of the contract. Clearly, she suffered no prejudice from the chancellor’s decision to allow appellee to intervene nearly two months before the parties’ property interests were to be decided.
Additionally, the chancellor stated that he would conform the pleadings with the proof and treat appellee’s pleading as if he had formally moved to intervene. The chancellor has broad discretion in allowing or denying amendments to the pleadings. See Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994); Cawood v. Smith, 310 Ark. 619, 839 S.W.2d 208 (1992). We cannot conclude that the chancellor abused his discretion in allowing appellee to intervene, even though he did not file two separate pleadings in seeking to do so.
In her second point on appeal, appellant also argues that she was not properly served by appellee under Arkansas Rule of Civil Procedure 5(b). This argument was not raised below; therefore, we will not decide it. We have held many times that we will not consider issues raised for the first time on appeal. Finn v. State, 36 Ark. App. 89, 819 S.W.2d 25 (1991); Cox v. Bishop, 28 Ark. App. 210, 772 S.W.2d 358 (1989). See also Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991).
In her third point on appeal, appellant argues that appellee had no grounds to intervene under Rule 24(a), which provides for intervention of right, or under Rule 24(b), which provides for permissive intervention. We reject this argument because appellee has satisfied the three requirements that an applicant must meet in order to intervene as a matter of right: (1) that he has a recognized interest in the subject matter of the primary litigation; (2) that his interest might be impaired by the disposition of the suit; and (3) that his interest is not adequately represented by existing parties. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). In UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988), the court stated that an applicant must establish not only a sufficient interest, but also that the disposition of the action may, as a practical matter, impair or impede an ability to protect one’s interest and that the interest is not adequately represented by the existing parties. In Billabong Products, Inc. v. Orange City Bank, supra, the court stated: “Generally, if the one seeking intervention will be left with his right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right.” 278 Ark. at 208-09, 644 S.W.2d at 595. Accord Midland Dev., Inc. v. Pine Truss, Inc., 24 Ark. App. 132, 750 S.W.2d 62 (1988). In Schacht v. Garner, supra, the supreme court stated that intervention as a matter of right cannot be denied, but intervention by permission is discretionary, the denial of which will only be reversed if that discretion is abused. See also Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982).
Clearly, appellee had an interest in the real property of his parents that was not adequately represented by either of his parents in their divorce proceeding. It is also apparent that appellee’s interest in the property would be impaired by the public auction of his parents’ property following their divorce. If the thirty-eight-acre parcel of land had been sold at public auction, appellee would not have been left with a remedy against his parents. Therefore, appellee adequately demonstrated that he was entitled to intervene as a matter of right. Additionally, even if appellee’s intervention could only be characterized as permissive, the chancellor did not abuse his discretion in allowing him to intervene.
Appellant argues in her fourth point on appeal that the chancellor erred in allowing appellee to intervene in an untimely fashion. Timeliness under Rule 24(a) is a matter lying within the discretion of the trial court and will not be subject to reversal absent abuse of that discretion. Carton v. Missouri-Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993); Employers Nat’l Ins. Co. v. Grantors, supra; Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992); Polnac-Hartman & Assocs. v. First Nat’l Bank, 292 Ark. 501, 731 S.W.2d 202 (1987); Bank of Quitman v. Phillips, 270 Ark. 53, 603 S.W.2d 450 (Ark. App. 1980). Timeliness is to be determined from all of the circumstances. Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, supra. The factors that the trial court should consider in such a decision are: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Id. Rule 24 does not state a specific time limit for timely intervention. See Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994). When there are “unusual and compelling” circumstances, intervention may be permitted even after a final judgment has been entered. Id.
Appellant argues that appellee’s petition was filed after the entry of final judgment. This is incorrect. Even though the chancellor granted the parties a divorce in December 1993, he specifically reserved the determination of their property interests for a later hearing, which was held almost two months after appellee sought to intervene in the action. We hold that the chancellor did not abuse his discretion in refusing to find appel-lee’s petition to be untimely.
For her fifth point on appeal, appellant argues that the par ties’ oral agreement violated the statute of frauds. Again, this argument was not raised before the entry of the decree. In fact, appellant waited to raise this argument until two months after she had filed her only notice of appeal. We therefore need not address this issue.
Affirmed.
Rogers, J., agrees.
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John B. Robbins, Judge.
Appellant Robert M. Mathis and appellee Charlene J. Mathis were married on March 18, 1983, and divorced February 11, 1994. The only pertinent dispute arising out of the divorce involved Mr. Mathis’s retirement fund. Mr. Mathis worked for Southwestern Bell for twenty-eight years before retiring, and was married to Mrs. Mathis for the last eight of those years. When he retired, he received a lump sum of approximately $446,000 representing the cash value of his pension benefits and savings plan. These funds were initially deposited into a joint account with Mrs. Mathis. Within sixty days thereafter, Mr. Mathis withdrew and placed approximately $392,500 of these funds in IRAs under his individual name. At trial, Mr. Mathis contended that Mrs. Mathis was not entitled to half of these accounts, but rather was only entitled to one-half of the funds in these accounts that had accrued over the eight-year period he was working during their marriage. The trial court disagreed, finding that these accounts constituted funds held as tenants by the entirety. The trial court awarded one-half of the IRAs to Mrs. Mathis, and Mr. Mathis now appeals.
The evidence presented at trial shows that Mr. Mathis and Mrs. Mathis lived together in Oklahoma and that Mr. Mathis retired there on December 31, 1991. The couple later relocated to Arkansas. Upon retirement, Mr. Mathis elected to receive his retirement pension benefits in a lump sum. However, in order to receive such lump sum, Mrs. Mathis was required to execute a release of her survivor rights. Mrs. Mathis signed a release to this effect, and Mr. Mathis received cash payments totaling approximately $446,000.
As each cash payment was received, Mr. Mathis placed it in bank accounts held in his and Mrs. Mathis’s joint names. Later, he removed approximately $392,500 of these funds and placed the funds in three IRAs that were held solely in his name. Mr. Mathis testified that it was never his intention to give Mrs. Mathis half of these funds and that he temporarily placed the money in joint bank accounts only until he could roll it over into IRAs in his sole name. He asserted that Mrs. Mathis would not sign a release for him to receive a lump sum distribution unless the money was placed in a joint bank account. Mathis also stated that, in return for the release, he granted Mrs. Mathis a 25% survivorship interest in his IRA and purchased $100,000 worth of life insurance for her benefit.
Mrs. Mathis essentially denied that any such deal was made regarding her release of Mr. Mathis’s retirement benefits. She claimed that, prior to the release, Mr. Mathis had forced her out of their home and that she was living with her mother. She stated that she really did not understand the consequences of the release and signed it only because Mr. Mathis promised that she could return home upon signing it. Mrs. Mathis testified that she would not sign the release, however, until she was assured that the money would go into a joint bank account.
For reversal, Mr. Mathis argues that the trial court erroneously concluded that his retirement funds had been held as tenants by the entirety. He asserts that he never intended to give Mrs. Mathis half of these funds and asks that we reverse the chancellor and award Mrs. Mathis only one-half of the portion of these funds that accrued during their marriage.
Ordinarily, a former spouse is entitled to only a one-half interest in any retirement benefits acquired by the other spouse during the course of the marriage. Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986). However, once property is placed in the names of persons who are husband and wife, there is a strong presumption that the property is owned by the parties as tenants by the entirety. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988). This presumption may be overcome only by clear and convincing evidence that one spouse did not make a gift of one-half interest to the other spouse. Id. Clear and convincing evidence has been defined as evidence so clear, direct, weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitance, of the matter asserted. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). This court reviews chancery cases de novo and reverses the chancellor’s findings only if they are clearly erroneous or clearly against the preponderance of the evidence. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985).
The trial court determined that Mr. Mathis failed to convincingly prove that the IRA accounts, which were funded by monies withdrawn from the parties’ joint accounts, did not constitute funds owned by the parties as tenants by the entirety. Both parties agree that Mr. Mathis was permitted to receive his retirement pension benefits in a lump sum only after Mrs. Mathis signed a release. There could be little doubt that, due to marital problems at the time, Mr. Mathis did not want to relinquish half of the funds. However, it appears that this is precisely what he decided to do. Mrs. Mathis told him that she would not sign the release unless he agreed to place the money into a joint tenancy account. Mr. Mathis agreed to this and exhibited an intent to split the lump sum with his wife rather than opt for the monthly payment plan. Mr. Mathis argues, in essence, that he possessed a fraudulent intent rather than a dona-tive intent when he deposited the retirement benefits into their joint account, i.e., that he agreed to the joint tenancy solely as a ruse to obtain his wife’s release. We do not believe the trial court was clearly erroneous in finding that Mr. Mathis failed to overcome, by clear and convincing evidence, the presumption imposed by law that he intended to create a true joint tenancy with Mrs. Mathis.
It is also significant that, during the several weeks between the time when the money was placed in the joint account and when Mr. Mathis withdrew the funds and placed them in the IRAs, both parties had access to, and in fact, drew on these funds. This fact, and the fact that the parties agreed that Mrs. Mathis would execute a release in exchange for Mr. Mathis depositing the retirement funds into a joint account, distinguishes this case from Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). In Jackson the supreme court affirmed the chancellor’s holding that Mrs. Jackson proved by clear and convincing evidence that she did not intend to make a gift to her husband when she deposited non-marital funds into a joint checking account. However, the court relied on the fact that, on the same day of the deposit, Mrs. Jackson wrote a check for the entire amount deposited in order to purchase property from her sister. Unlike the fact situation in the instant case, Mr. Jackson never exercised any access or control over Mrs. Jackson’s funds. Moreover, Mr. Jackson did nothing to induce Mrs. Jackson to temporarily deposit the funds in a joint account. In the case at bar, it is undisputed that Mrs. Mathis would not allow Mr. Mathis to receive his lump-sum retirement pay unless he agreed to deposit it in an account bearing both of their names.
We hold that the chancellor’s decision in characterizing the retirement funds as tenancy by the entirety property even after Mr. Mathis transferred the funds to the IRAs in his individual name was not clearly erroneous.
Affirmed.
Jennings, C.J., Pittman and Rogers, JJ., agree.
Cooper and Mayfield, JJ., dissent. | [
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John F. Stroud, Jr., Judge.
Appellant, Vickey Fulghum, applied for unemployment compensation benefits after she was discharged by her employer, Regal Ware, Inc., for being involved in a fight with another employee. The Arkansas Employment Security Division determined that appellant was not entitled to benefits under Ark. Code Ann. § 11-10-514 (Supp. 1995) because she was fired for misconduct connected with the work on account of willful violation of the rules of her employer. She appealed that determination to the Arkansas Appeal Tribunal, which reversed the Division’s finding and awarded appellant benefits. Regal appealed the Tribunal’s decision to the Board of Review, which reversed the Tribunal’s findings and found that appellant was disqualified for benefits because she was involved in a fight in willful violation of Regal’s rules. We reverse.
The Board of Review’s decision was based solely on the record of the proceedings before the Appeal Tribunal. Appellant was the only eyewitness to the incident who testified at the hearing before the Tribunal. She stated that she was returning to her work station after borrowing a piece of gum from another employee when her co-worker Aram Roger walked past her. When she walked past Ms. Roger, they bumped into each other. Ms. Roger said, “You better watch out,” and appellant replied, “[You] watch out.” Appellant then turned around and began walking back to her station. She heard someone following her and turned around and said, “Yes?” Then Ms. Roger slapped her and appellant pulled Ms. Roger’s hair. The two fell to the floor in a scuffle which was broken up by other employees.
Charlene Brown, a human resource assistant for Regal, testified that the other employees who witnessed the event did not see anything until both women were on the floor. When asked why appellant was terminated, she stated:
Our employee rules of conduct, and we cover this in every pre-employment orientation, [state that if] there is any fighting on company property at all that is grounds for immediate termination, there are no exceptions. Both parties are terminated. And all indications point that Ms. Roger was the aggressor but company policy says that both employees must be terminated.
Ms. Brown never disputed appellant’s claim that she acted in self-defense nor did she offer any evidence to rebut the claim of self-defense.
The Board of Review found that appellant was discharged from work for misconduct connected with the work on account of a willful violation of the rules of the employer. A person is disqualified from benefits if she is discharged from her last work for misconduct in connection with the work. Arkansas Code Annotated § ll-10-514(a)(l) (Supp. 1995). “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). There is an element of intent associated with a determination of misconduct. Id. Mere good-faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest. Id. Whether the employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Id.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
The Board found:
the evidence fails to establish that the claimant did not have the opportunity to retreat, or that the response to the slap was self-defense. Thus, while the claimant might feel that her actions of retaliation were justified, misconduct is established.
Upon our review of the record in this case, we hold that there was no relevant evidence from which reasonable minds could conclude that appellant manifested the requisite culpability for her violation of Regal’s rules to constitute misconduct. There is no evidence in the record to indicate that she harbored any wrongful intent, evil design, or intentional disregard of her employer’s interest.
The facts of this case are parallel to those in Hodges v. Everett, Director, 2 Ark. App. 125, 617 S.W.2d 29 (1981), in which we stated:
It may well be that the employer is justified in having a rule making any employee engaging in a fight subject to discharge, but the existence of such rule does not necessarily mean that the discharged employee is guilty of misconduct within the meaning of the Arkansas Employment Security Law. There is no evidence in this case that appellant knew of a rule against self defense, but even if she had known, legitimate self defense would not disqualify her for unemployment benefits. Furthermore, there is no substantial evidence to indicate that appellant struck her attacker, or do more than hold her by the hair. The right of self defense is recognized under English common law and by Arkansas statutory law, and is universally accepted. It is a right the exercise of which cannot be said to be an act of wanton or willful disregard of the employer’s interest. There is no substantial evidence to support the Board of Review’s finding that appellant was guilty of misconduct, and she is entitled to unemployment benefits. (Internal citations omitted.)
In this case, as in Hodgesy there is no doubt that appellant violated one of her employer’s rules. However, there is not substantial evidence to support the Board of Review’s finding that appellant was guilty of misconduct.
Reversed and remanded.
Mayfield and Neal, JJ., agree. | [
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John E. Jennings, Chief Judge.
George Gutherie was convicted by a Craighead County jury of burglary and misdemeanor theft. He appeals from the theft conviction only, contending that the evidence was insufficient to support the conviction. We disagree and affirm.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
On February 18, 1994, Woodrow Wilson saw appellant’s brother, Gerald, running out from behind Garland Platz’s house. Wilson testified that he went into town to warn Platz. He testified that he told Platz that he thought appellant and his brother had “ripped him off.” Garland Platz testified that after talking to Wilson he drove home and when he was about 100 yards from his house he saw appellant and his brother pulling out of his driveway. He testified that his VCR had been stolen. Platz gave Officer Terry Wicker a description of appellant’s car. Wicker testified that when he stopped appellant’s car, he saw a VCR in the car. Finally, appellant’s brother testified that he had broken into Platz’s house because appellant told him to get something so they could pawn it.
Appellant contends that the evidence was insufficient because the only testimony connecting him with the theft was that of his brother, an accomplice whose testimony had to be corroborated. Appellant was convicted of misdemeanor theft. In misdemeanor cases, the testimony of an accomplice alone is sufficient to support a conviction. Ark. Code Ann. § 16-89-111 (e)(2) (1987). Appellant further argues that his brother’s testimony was not credible. The issue of a witness’s credibility was a matter for the jury to determine. Carter v. State, 46 Ark. App. 205, 878 S.W.2d 772 (1994). We hold that the evidence was sufficient to support the conviction.
Affirmed.
Robbins and Griffen, JJ., agree. | [
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John B. Robbins, Judge.
Appellant City of Shannon Hills (Shannon Hills) brought an action against appellees David L. Sparks and Joe Claypool in the Saline County Chancery Court. In its complaint, Shannon Hills alleged that appellees had breached an oral contract to bring certain roads up to city specifications. Shannon Hills sought specific performance or, in the alternative, damages. In its answer, the appellees prayed that the case be transferred to circuit court because this was not a proper case for specific performance and chancery court lacked jurisdiction. The chancellor agreed and transferred the case to the Saline County Circuit Court.
A jury trial was held in Saline County Circuit Court. After Shannon Hills rested its case, the appellees moved for a directed verdict, which was granted. The trial court found that, even if a contract existed between the parties, Shannon Hills was not entitled to damages because none were suffered.
For reversal, Shannon Hills contends that the chancery court erred in transferring the action to circuit court. In addition, it argues that the circuit court erred in dismissing the case because it had a right to recover damages. We find no error and affirm.
Harold Mclntire, Mayor of Shannon Hills, testified on behalf of the city. He stated that, in 1983, it came to his attention that the appellees were seeking approval to develop a subdivision to be known as Joan’s Subdivision. He stated that appel-lees wanted Shannon Hills to accept the private gravel roads in the subdivision for dedication to the city as city roads. However, this request was denied. Later, on September 26, 1983, the city council conducted a meeting after which it approved the appel-lee’s subdivision plans. However, as a condition to the approval, the appellees were required to bring the roads up to city standards in 7 Vi years. According to the mayor, the appellees were present at this meeting and did not object to the condition. It was also agreed that, at the discretion of Shannon Hills, the city was authorized to grade the roads, provide police patrol on the roads, and respond to any emergencies.
More than seven years later appellees had not paved the roads in question, yet they continued to develop the subdivision. Therefore, two months before the 7 Vfc-year period ended, the mayor notified appellees that the deadline was approaching and that the roads were not up to city specifications. The appellees failed to upgrade the roads, and this action was commenced.
Tommy Bond, a consulting engineer, also testified on behalf of Shannon Hills. He stated that, based on his estimation, it would cost $58,286.55 to bring the roads in Joan’s Subdivision up to city specifications. Shannon Hills sought this amount as damages, and the mayor testified that this money would be used to pave the roads and bring them up to the city’s standards.
Shannon Hills’ first argument for reversal is that the chancery court erroneously transferred this case to circuit court. It asserts that, since its complaint sought specific performance, the chancery court had jurisdiction to hear the case. Shannon Hills acknowledges that, in order to be entitled to specific performance, a plaintiff must first show that it is able to perform its part of the bargain. See McIllwain v. Bank of Harrisburg, 18 Ark. App. 213, 713 S.W.2d 469 (1986). It asserts that its part of the bargain has been fully performed because it approved the subdivision, and that appellees should be ordered to fulfill its obligation to bring the roads up to city specifications. Shannon Hills further acknowledges that specific performance of an agreement will not be granted unless the subject matter is so unique that damages in an action at law would be inadequate. See McCallister v. Patton, 214 Ark. 293, 215 S.W.2d 701 (1948). However, it argues that special circumstances exist in the instant case which render specific performance the appropriate remedy. As a special circumstance, Shannon Hills asserts that damages may be difficult to recover. It also states that if damages are awarded, the city would have the added expense and inconvenience of soliciting bids and retaining a company to do the necessary paving. Finally, Shannon Hills asserts that it would be a burden if it were required to supervise their selected contractor, inspect the work, and make payment therefor.
We need not address Shannon Hills’ argument that this case was erroneously transferred from chancery court because there is nothing in the abstract or record to demonstrate that Shannon Hills ever made any objection to the transfer. Since there is no evidence that Shannon Hills objected to the transfer, it effectively consented to the circuit court’s adjudication of the controversy, and cannot now take issue with the transfer. See Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985). Although counsel for Shannon Hills stated during oral arguments before this court that objections to the transfer were made to the chancellor, the record does not so reflect, and it is well established that it is the appellant’s burden to bring up a record sufficient to demonstrate reversible error. SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). The record is silent as to any objection on this issue. Thus, it is not preserved for our review.
Shannon Hills’ remaining argument is that the circuit court erred in directing a verdict in the appellee’s favor, thereby denying Shannon Hills’ claim for damages. It argues that it was under no obligation to approve appellees’ request to develop Joan’s Subdivision, and that it is now entitled to have the roads upgraded pursuant to the agreement between the parties. Shannon Hills further asserts that it would not have approved the subdivision absent this agreement.
We need not decide whether a binding contract existed in this case because, as the circuit court found, even if appellees breached a contract with Shannon Hills, there was no proof that Shannon Hills suffered any damages. Although Shannon Hills was under no obligation to approve a development of this subdivision, doing so caused it no financial harm. The mayor and former council members conceded that the roads in question were not owned by the city, but were privately owned, and may never be dedicated to the city even if they were brought up to city standards. Therefore, the fact that appellees failed to pave the roads did not damage Shannon Hills. It simply had no property interest in the roads.
Shannon Hills seems to suggest that approval of the subdivision caused them the expense of providing fire and police protection, as well as performing minor repairs to the roads as they become necessary. However, it provided no proof of the cost of such undertakings, and its request for damages apparently did not include such cost. Moreover, it is undisputed that the city was not required to provide these services and rendered them at its sole discretion.
In Lytle v. Wal-Mart Stores, Inc., 309 Ark. 142, 827 S.W.2d 652 (1992), our supreme court quoted from Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990), as follows:
[ I]n addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Where the evidence is such that fair-minded people might have different conclusions, then a jury question is presented, and the directed verdict should be reversed.
Lytle at 143.
In the case at bar, we find no error in the circuit court’s conclusion that a jury question was not presented due to Shannon Hills’ failure to prove any damages. Thus, we affirm its decision to grant a directed verdict in favor of the appellees.
Affirmed.
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Judith Rogers, Judge.
The Board of Review affirmed and adopted the decision of the Appeal Tribunal disqualifying appellant, Sherman Rucker, from receiving unemployment compensation benefits based on a finding that he was discharged for misconduct connected with the work. In this unbriefed appeal, the issue before us is whether the Board’s decision is supported by substantial evidence. We hold that it is so supported, and affirm.
Appellant was employed by Townsends of Arkansas, Inc. In October of 1990, Townsends implemented a chemical substance and alcohol abuse policy with the goal of establishing a drug-free workplace. When appellant was hired in April of 1991, he signed a consent form agreeing to abide by the terms and conditions of the policy. Townsends’ policy did not provide for random drug testing; however, testing was required of applicants seeking employment and of employees who were reasonably suspected of being under the influence of illegal drugs, controlled chemical substances and alcohol. Testing was also required of employees who were injured on the job, when the injury required treatment by a physician. The policy contained a listing of prohibited substances and set out levels of those substances, and alcohol, which would not be permitted. The policy called for the automatic termination of an employee whose test yielded such a positive result, although employees were given the opportunity for a second test, at their own expense.
Appellant worked as a trainer in the wing department. On June 1, 1994, a Wednesday, he sliced his hand with a knife while cutting a cardboard box. Seven stitches were required to repair the injury. On the day of the accident, appellant submitted a urine sample for testing. He was fired, effective June 7, 1994, for failing to pass the test. It was said that the test revealed a positive result for a non-prescription, controlled substance. However, in keeping with the company’s policy of confidentiality, the particular drug was not named. Appellant did not request a second test.
Appellant testified of his awareness of the drug policy, including the provision calling for automatic termination should he fail a drug test following a work-related injury. He denied that he had taken any drugs on the day of the accident, but he said that he had “smoked a joint” during the Memorial Day weekend.
On this evidence, the Board ruled that appellant was discharged for misconduct connected with the work, finding that he had violated a company rule and that his conduct was in disregard of his employer’s interest. The Board, declined, however, to deny benefits under Ark. Code Ann. § ll-10-514(b) (Supp. 1993), which provides for further disqualification for reporting to work under the influence of intoxicants, including controlled substances.
On appeal, the findings of facts of the Board of Review are conclusive if they are supported by substantial evidence. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Arkansas Code Annotated § ll-10-514(a) (Supp. 1993) provides that an individual shall be disqualified for benefits if he is discharged for misconduct in connection with the work. “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and, (4) disregard of the employee’s duties and obligations to his employer. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). There is an element of intent associated with a determination of misconduct. Mere good faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of the employer’s interest. Id. Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Id.
At the hearing, appellant argued that he should not be penalized for his off-duty conduct. At first blush, such an argument brings to mind our decision in Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). In Feagin, we recognized that misconduct in connection with the work can occur while an employee is off duty. There, a teacher was fired after criminal charges had been filed against her for the possession of a controlled substance, which had been found in her home. In affirming the Board’s finding of misconduct, we adopted a three-part test for determining whether an employee’s off-duty conduct will be considered misconduct in connection with the work. First, there must exist a nexus between the employee’s work and his or her off-duty activities. Second, it must be shown that the off-duty activities resulted in harm to the employer’s interests. And third, the off-duty conduct must be violative of some code of behavior contracted between the employer and employee, and the employee’s conduct must be done with the intent or knowledge that the employer’s interests would suffer.
The decision in Feagin v. Everett, id., however, does not gpvern our review of the instant case. We have recognized that misconduct may also be found for the intentional violation of an employer’s rules. In Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990), the employer had developed a safety program which included drug testing on a random basis. The policy prohibited employees from having “any detectable level of alcohol, drugs, or controlled substances, or any combination thereof, in the body.” The employee was discharged after failing a drug test. The Board of Review awarded unemployment compensation benefits. We reversed, holding that the employee’s actions constituted misconduct in connection with the work in that the employee’s positive test result represented a deliberate violation of the employer’s rules, as well as a willful disregard of the standard of behavior which the employer had a right to expect. More recently, we decided the case of George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). The employer in that case had also adopted a drug policy, and the employee was fired after testing positive for a detectable amount of a controlled substance which had not been prescribed to him. We disagreed with the Board’s conclusion that the employer’s drug policy was not reasonable , and we held that the employee was discharged for the violation of the employer’s rules. We remanded for the Board to make a finding of fact as to whether the employee’s violation of the employer’s rule was intentional, since the Board had not addressed that pivotal issue.
In reviewing this case, we are guided by the decisions in Grace Drilling Co. v. Director, supra, and George’s Inc. v. Director, supra. We conclude that appellant was not discharged for off-duty conduct, but that he was terminated pursuant to the employer’s policy requiring the discharge of any employee who tested positively for drugs in excess of the designated tolerance levels. As appellant’s conduct was in violation of the employer’s rules, we hold that he was discharged for misconduct in connection with the work. Noting that appellant had agreed to be bound by the policy and that he was thus aware of its terms and the ramifications for failing a test, the Board found that appellant’s conduct was intentional. We cannot say that the Board’s decision of disqualification is not supported by substantial evidence.
Affirmed.
Bullion, S.J., agrees.
Mayfield and Robbins, JJ., dissent.
Cooper, J., not participating.
In Grace Drilling Co. v. Director, supra, we observed that it was not unreasonable for the employer to implement a drug policy given the dangerous nature of employer’s business. In George’s Inc. v. Director, supra, we stated that a prerequisite to finding misconduct for the violation of an employer’s rule is that the rule be “reasonable.” The record in this case contains no evidence describing Townsends’ business or appellant’s job duties. In sum, no argument was made below challenging the reasonableness of Townsends’ drug policy. We thus do not consider this question as being within the realm of contested issues, and thus we can offer no opinion on the matter. This court does not consider issues raised for the first time on appeal. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). | [
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James R. Cooper, Judge.
The appellant, Sam Dean, Jr., appeals a judgment of the Phillips County Circuit Court that awarded the appellees State Farm Insurance Company (State Farm) and Entergy Benefits Plus Plan (Entergy) an equal division of the remaining $16,500.00 settlement paid by appellee Colonia Underwriters Insurance Company (Colonia). For reversal, the appellant argues that: (1) State Farm does not have a right to subrogation under Arkansas law; and (2) Entergy does not have a right to subrogation under its reimbursement agreement. We affirm the award to State Farm and the award to Entergy is affirmed as modified.
In March 1992, the appellant was involved in an automobile accident when Edward Nolan struck appellant while Nolan was attempting to outrun the police. The appellant suffered severe injuries to his spine as a result of the accident, incurred medical bills in excess of $35,000.00, and was determined to be totally disabled by the Social Security Administration and his employer, Entergy. The vehicle Nolan was driving was insured by appellee Colonia. Colonia tendered its $25,000.00 policy limits to the clerk of the court, and the appellant filed a declaratory judgment action, requesting that the court find that appellees State Farm and Entergy were not entitled to any subrogation from these benefits. State Farm answered and claimed it was entitled by statute and its policy language to recover the medical benefits and loss of income payments it had paid to appellant. Entergy answered and counterclaimed, asserting its right of sub-rogation for medical benefits and disability benefits paid by it. Attached to appellee Entergy’s counterclaim was a “Reimbursement Agreement” signed by the appellant that provided:
In consideration of the receipt from the Aetna Life Insurance Company (hereafter called Aetna) by me, on my behalf or on behalf of any of my covered family members) of benefit payments provided under the employee benefit plan established by my employer, I agree for myself and for any other injured covered family membe: to whom or for whom such payments were made, and such family member(s) (or the legally authorized representative if such family member is legally incapacitated) by signing this agreement [appellant] also agree(s) to reimburse Aetna for all such payments in the event of recovery from any third person legally responsible for said injuries, whether by suit, settlement or otherwise, but only to the extent that the net amount of such recovery is attributable to hospital, surgical or other health or medical expenses paid under the plan. I (We) also agree that a lien shall exist in favor of Aetna upon all sums of money recovered in connection with such injuries to the extent of the benefit payments paid under the plan.
In September 1993, appellee State Farm moved for summary judgment. In its motion, State Farm claimed that it had a statutory and contractual right to recover the sum of $12,280.00 paid to appellant under its medical payments and lost income coverages of its policy and that there is no material fact in dispute. Appellee Entergy filed a cross-motion for summary judgment. It contended that there were no material issues of fact in dispute and that it had paid appellant $25,361.00 from its medical plan as a result of appellant’s accident, which entitled it to subrogation. In opposition to the appellees’ motions for summary judgment, the appellant claimed that he was entitled to the entire $25,000.00 because no medical or lost wages were included in that payment and, therefore, he would not be receiving a double recovery. Attached to the appellant’s brief were the affidavits of Gene Raff and Michael Easley, trial attorneys, who each stated that, after reviewing appellees’ case, it was their opinion that appellant’s damages exceeded $250,000.00.
On March 7, 1994, the court handed down its letter opinion, holding that appellees State Farm and Entergy were entitled to recover in equal proportions from Colonia’s settlement less the costs of collection. In a letter written to the appellant’s attorney, the court stated:
The Court is of the opinion that it cannot determine what part, if any, of the $25,000.00 paid by Colonia was for medicals and loss of income and what part was for pain and suffering and mental anguish without either a stipulation by the parties or some sort of evidence from which the Court could make a finding. If the parties will submit either a stipulation or some evidence the Court will make some finding.
An evidentiary hearing was held on June 23, 1994, at which time exhibits were presented to the court that showed the amounts paid by appellees State Farm and Entergy on the appellant’s behalf and also itemized the appellant’s medical bills and lost wages.
A final order was entered by the court on October 6, 1994. In that order, the court found that $16,500.00 remained of Colonia’s $25,000.00 payment after deduction for court costs and attorney’s fees. The court then concluded: “The remaining $16,500.00, although allocated one-third for medical, one-third for loss of earnings, and one-third for pain and suffering and bodily injury, is to be divided equally between State Farm Insurance and Entergy Benefit Plus Plan.”
The appellant first contends that the trial court erred in finding that State Farm has a right of subrogation under Arkansas law. Although the appellant acknowledges in his brief that “[i]t is uncontested that the State Farm policy contains a reimbursement agreement should Sam Dean, Jr., recover from a third party which he did,” he nevertheless, contends that, since he has not been made whole as a result of this settlement nor has he been reimbursed for any medical payments or loss of earnings by the settlement, State Farm is not entitled to be reimbursed for the medical or lost earnings it paid to him.
We note that the trial court apportioned the $16,500.00 net recovery to one-third medical benefits, one-third loss of earnings, and one-third pain and suffering and bodily injury. Therefore, appellant’s statement that the Colonia settlement did not include any reimbursement for medical payment or lost earnings is incorrect.
In his brief, the appellant states that his pain and suffering far exceeds the $25,000.00 recovery and should be paid first before any part is allocated for medical benefits and loss of earnings. However, he has not cited any authority for this proposition. An assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent, without further research, that the assignment of error is well taken. Smith v. Smith, 41 Ark. App. 29, 32, 848 S.W.2d 428 (1993); General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 3, 746 S.W.2d 386 (1988). Furthermore, the appellant has not abstracted any evidence to show the trial court’s allocation of his recovery is clearly against the preponderance of the evidence. The appellant claims that the affidavits attached to his brief in response to appellees’ summary judgment motions state that, in the affiants’ opinions, the $25,000.00 should not include reimbursement for medical benefits or lost wages. However, he has not included these portions of the affidavits in his abstract. It is the appellant’s burden to abstract the record to demonstrate error, and the appellate court will not go to the record to determine whether reversible error occurred. Couch v. First State Bank, 49 Ark. App. 102, 104, 898 S.W.2d 57 (1995).
On this record, we cannot say that the appellant has come forward with any evidence to show the allocation by the court is clearly erroneous.
The appellant correctly contends that he has not been made whole as a result of his recovery against Colonia. Nevertheless, State Farm is still entitled to pursue its subrogation claim. The State Farm policy provides: “We are subrogated to the extent of our payment to the proceeds of any settlement the insured person recovers from any party liable for the bodily injury.” The clear language of this agreement does not restrict State Farm’s subrogation rights only in the event appellant recovers medical benefits or lost wages. Nor does Ark. Code Ann. § 23-89-207 (Repl. 1992) contain such a restriction. Subsection (a) of this section provides: “Whenever a recipient of § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection as defined.” No restrictions have been placed on this statutory language, which has been in effect since its passage in 1973. It is uncontested that State Farm’s payments to appellant of medical benefits and lost wages were pursuant to Section 23-89-202.
An argument similar to the appellant’s was made by the appellant in Higginbotham v. Arkansas Blue Cross and Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993). In that case, the appellant was seriously injured in an automobile accident. The other driver was insured by State Farm, and State Farm paid the appellant its policy limits of $25,000.00 in return for a release executed by the appellant. The appellee, who carried medical insurance on the appellant, paid his medical bills total-ling $11,482.08 and subsequently made demand on the appellant for reimbursement of the benefits it had paid, relying on the sub-rogation clause in its insurance policy: “The plan shall be subro-gated and shall succeed to such covered person’s right of recovery against any third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended.” 312 Ark. at 200. The appellant, however, refused the appellee’s demand, asserting that the appellee was not entitled to subrogation until the appellant had received sufficient sums of money to be “made whole.” Although the trial court found that the $25,000.00 did not fully compensate the appellant for his injuries, it held that the right of subrogation provided in the insurance contract applies regardless of whether the covered individual is fully compensated in his settlement with the tortfeasor’s insurance company. In affirming the trial court’s decision, the Supreme Court held:
Although we attribute considerable merit to the opposing approach, we believe on balance the policy language must govern. The clause is clear; the words are unambiguous:
In the event any benefits or services of any kind are furnished to you or payment made or credit extended to or on behalf of any covered person for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such covered person’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended. [Our emphasis.]
We are not overlooking our own case, Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), decided after these briefs were filed but discussed in oral argument. The decision contains this comment:
Although we have no criticism of the cases cited by Bough, the rule limiting the insurer’s rights to sub-rogation in those cases is not applicable to the facts here. The equitable nature of subrogation is granted an insurer to prevent the insured from receiving a double recovery. Thus, while the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. That is the situation here.
But the fact remains that we have not previously addressed the issue here presented, nor were we doing so in Bough. The primary holding of that case concerned whether Shelter had properly made underinsured motorist benefits available to its insureds, Nancy and Robert King, whose vehicle Bough was driving when the loss occurred. A secondary issue was whether Shelter was prejudiced by Bough’s full release of the third party tort-feasor and his carrier without notice to Shelter. Thus, the excerpt from Bough was dictum.
It may be those equitable principles on which Hig-ginbotham relies are appropriate to the doctrine of subro-gation by operation of law, a right broadly recognized in the law irrespective of whether there is a provision in the policy itself, but not where, as here, the right is one of conventional subrogation, that is, subrogation by express agreement between the insured and the insurer. See 44 Am. Jur. 2d Insurance at 783 (1982).
Higginbotham v. Arkansas Blue Cross and Blue Shield, 312 Ark. at 202-03.
The appellant argues in the case at bar that the deci sion in Higginbotham should not be applied because that case was a 4-3 decision and Justice Brown concurred in that decision, stating:
Based on the record before us, it is impossible to tell what State Farm’s liability benefit of $25,000 involved. Presumably it was liability coverage for bodily injury only. Blue Cross should only recover by subrogation to the extent that there has been double recovery by the insured for the same damages covered by Blue Cross. Had the appellant shown that part of the State Farm benefits were for damages other than for medical treatment, I would disallow subrogation for the non-medical portion of the benefits paid for public policy reasons. However, that was not done, perhaps because the parties understood that the liability coverage only went to bodily injury. For that reason I concur with the opinion.
312 Ark. at 204. The appellant again argues that State Farm is not entitled to subrogation out of any of the recovery because he was not reimbursed for medicals or loss of earnings out of the $25,000.00 settlement. However, as we previously stated, the appellant’s assertion of facts is clearly contrary to the trial court’s order that allocated one-third of the recovery to medical benefits and one-third to loss of earnings. Furthermore, we are without authority to overrule decisions made by the Supreme Court. See Roark v. State, 46 Ark. App. 49, 55, 876 S.W.2d 596 (1994); Leach v. State, 38 Ark. App. 117, 130, 831 S.W.2d 615 (1992); Huckabee v. State, 30 Ark. App. 82, 86, 785 S.W.2d 223 (1990).
Next, the appellant argues that Entergy does not have a right to subrogation under its reimbursement agreement. In support of his argument, the appellant relies on the Reimbursement Agreement drafted by Entergy and signed by the appellant, which states:
[ B]y signing this agreement, [appellant] also agree(s) to reimburse Aetna for all such payments in the event of recovery from suit, settlement or otherwise, but only to the extent that the net amount of such recovery is attributable to hospital, surgical or other health or medical expenses paid under the plan.
The appellant argues that the clear language of the Reimbursement Agreement provides that Entergy can only recover out of third-party benefits to the extent that the net amount of the recovery is attributable to health or medical expenses under the plan. We agree. In this case, the trial court allocated $5,500.00 of the recovery as medical benefits. Therefore, under the clear language of the Reimbursement Agreement, the trial court erred in allowing Entergy to share equally in the $5,500.00 award for loss of wages and the $5,500.00 award for pain and suffering and bodily injury.
Appellee Entergy tendered two arguments in response to the appellant’s argument; however, Entergy’s first response was stricken by this court on May 3, 1995, and Entergy has not challenged that ruling. The appellee’s second argument is that, under Arkansas law, it has a right to subrogation under its plan. Entergy then cites the case of Storey v. Arkansas Blue Cross / Blue Shield, Inc., 17 Ark. App. 112, 114-15, 704 S.W.2d 176 (1986), for the proposition that a party cannot accept the benefits under a contract and, at the same time, avoid his obligations under such agreement. Entergy argues that, because the appellant accepted the benefits under its medical plan, he must now reimburse Entergy according to the obligation.
While we agree that Entergy is entitled to a subrogation in accordance with the clear language of its plan, the subro-gation clause in its plan is fairly restrictive. It provides:
If a member or a covered dependent is injured as a result of actions of a third party, the plan shall be entitled to recover all benefits paid hereunder for expenses incurred in the treatment of such injury from the member or covered dependent upon the settlement of any claim against a third party or upon a judgment in favor of the member or covered dependent in case of a lawsuit.
Although the specific language of this plan entitles Entergy to be subrogated for the medical payments it paid on behalf of the appellant, we do not think this language would allow Entergy reimbursement for the disability benefits it paid appellant or allow it to seek reimbursement from the lost wages or pain and suffering award. Moreover, the specific language of the Reimbursement Agreement executed by the parties in July 1992 over rides the general provision in the plan. Because the trial court found that only $5,500.00 of the Colonia benefits were for medical payments, the $8,250.00 award to Entergy must be reversed.
Entergy has not cross-appealed its award of only half of the $5,500.00 medical benefits nor claimed it was entitled to a larger portion. Therefore, we order that the $8,250.00 award to Entergy be modified and reduced to $2,750.00, which is one-half of the medical benefits that appellant received from Colonia. This Court has the power to divide two causes of action in a circuit judgment, so long as it is not dividing a single jury verdict. Crookham & Vessels, Inc. v. Larry Moyer Trucking, Inc., 16 Ark. App. 214, 218-19, 699 S.W.2d 414 (1985).
Affirmed as modified.
Stroud and Griffen, JJ., agree. | [
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Sarah Heffley, Judge.
In this workers’ compensation case, Jerry Slaughter was exposed to chlorine gas on November 17, 2004, during the course and scope of his employment with appellee, the City of Hampton. On December 22, he was admitted to the hospital, where testing revealed that he was infected with the HIV virus and that he also had Chronic Obstructive Pulmonary Disease (COPD) in the form of emphysema. At the time of the accident, Slaughter had been engaged to and was living with La’Ronda Slaughter. They were married in a ceremony performed at the hospital on January 5, 2005. Slaughter died ten days later. He was thirty-five years old.
La’Ronda Slaughter, as executrix of Slaughter’s estate, filed a claim with the Arkansas Workers’ Compensation Commission seeking temporary-total disability benefits and the payment of medical expenses, funeral expenses, and spousal death benefits. The Commission denied this claim based on a finding that Slaughter’s work-related accident was not the major cause of his physical harm, as required by Ark. Code Ann. § 11-9-114 (Repl. 2002). Appellant contends on appeal that the Commission’s decision is not supported by substantial evidence. We agree and reverse and remand.
The applicable statute in this case, Ark. Code Ann. § 11-9-114, governs the compensability of heart and lung injury or illness. It provides:
(a) A cardiovascular, coronary, pulmonary, respiratory, or cere-brovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause of the physical harm.
(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the employee’s usual work in the course of the employee’s regular employment or, alternatively, that some unusual and unpredicted incident occurred which is found to have been the major cause of the physical harm.
(2) Stress, physical or mental, shall not be considered in determining whether the employee or claimant has met his or her burden of proof.
The term “major cause” means more than fifty percent of the cause, which must be established by a preponderance of the evidence. Ark. Code Ann. § ll-9-102(14)(A) & (B) (Supp. 2005).
In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Coleman v. Pro Transportation, Inc., 97 Ark. App. 338, 249 S.W.3d 149 (2007). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Freeman v. Con-Agra Frozen Foods, supra. We defer to the Commission on issues involving the weight of the evidence and credibility of the witnesses, but while the Commission’s findings on these matters are insulated to a certain degree, its decisions are not so insulated as to render appellate review meaningless. Lloyd v. United Parcel Service, 69 Ark. App. 92, 9 S.W.3d 564 (2000).
The record shows that Slaughter worked in the city’s water department. His duties included changing 150-pound cylinders of chlorine gas that were housed in a small building beneath the city’s water tower. On November 17, 2004, Slaughter was performing this task with fellow employees Buddy Hannegan and Monroe Slaughter, his father. The city had provided only one mask for the three of them to wear, and it was worn that day by Monroe. Unbeknownst to the men, the valve to the new cylinder being installed had a crack in it, and when Slaughter opened the valve, chlorine gas spewed directly in his face. All three were overcome by the gas and ran out of the building, but according to Monroe and Hannegan, Slaughter bore the brunt of the leak. Outside, Slaughter was bent over gagging, coughing, and gasping for breath. Later his eyes became irritated and mucus ran from his nose. After the building aired out, Monroe and Hannegan replaced the cylinder while Slaughter remained outside. As it was quitting time, they left for home. Slaughter declined Hannegan’s offer to drive him home.
Slaughter returned to work the next day. Monroe testified that Slaughter was not feeling well and was having trouble breathing. Slaughter told him that his throat was sore and felt like it had a knot in it. Monroe said that, because Slaughter was feeling so poorly, he and Hannegan did not let him do much work. He considered Slaughter to be a hard worker, but said that he never worked hard again. He did not believe Slaughter worked much after the accident, and he thought Slaughter also took all of his sick leave and vacation time following the accident. Monroe testified that Slaughter was not the kind of individual who went to the doctor and that, as far as he knew, Slaughter had not been ill prior to the accident.
Hannegan testified that Slaughter “looked pretty rough” the day after the accident. He said Slaughter was “spitting up stuff,” lacked energy, and was having trouble breathing. He said Slaughter was worse when he came to work two days later. He did not believe Slaughter worked more than a day and a half after the accident.
La’Ronda Slaughter testified that Slaughter came in from work on the day of the accident and said, “Baby, I like to have gotten killed today.” Slaughter was late getting home and explained that he had to stop for a while on the way because he could not breathe. He had a normal appetite that evening, but La’Ronda had to help him up the stairs to bed. She testified that he panted a lot during the night and did not sleep well. When he came home after work the next day, he was still panting and breathing hard. As time went on, he became worse, and she finally persuaded him to see a doctor.
Slaughter saw Dr. Robert Watson on December 9, 2004, and complained of shortness of breath and chest congestion. X-rays revealed no infiltrates in the lungs, but pulmonary function tests did indicate that his breathing was obstructed. Although Dr. Watson’s notes do not indicate that Slaughter mentioned the chlorine-gas incident, La’Ronda testified that she was present during the examination and that Dr. Watson was informed about the accident. Dr. Watson’s impression was that of upper respiratory infection, acute bronchitis, restricted lung disease, and shortness of breath. He encouraged Slaughter to stop smoking and prescribed a round of steroids, Advair, antibiotics, and cough medicine. Slaughter was advised to return in two weeks.
La’Ronda testified that the medication did not help and that she had wanted Slaughter to return to the doctor sooner than in two weeks. Nevertheless, Slaughter waited until December 22 to return to Dr. Watson. Slaughter’s pulse oximeter reading had declined to 60%, and Dr. Watson noted that he was hypoxic and tachypneic, and that his shortness of breath and pulmonary function had worsened. Because Slaughter’s condition had substantially deteriorated, Dr. Watson immediately placed him in the hospital, where he came under the care of Dr. Richard Dietzen, and it was discovered that Slaughter was HIV positive.
La’Ronda testified that Slaughter had not previously known that he had HIV and that he did not know how he had contracted it. She acknowledged that Slaughter had recently lost ten pounds, but she said that was not unusual because of the way he worked in the summer time.
Steve Daniell, the Chief of Police for appellee, was Slaughter’s supervisor. According to the attendance records, Slaughter worked the day following the incident, a Thursday. Slaughter took a sick day that Friday and a vacation day on November 24. He did not work at all after December 9.
Slaughter ended his days on a ventilator in the intensive-care unit of the hospital. Dr. Watson’s discharge summary gave diagnoses of respiratory failure, pneumonia, end-stage HIV, COPD, and chemical inhalation. On the death certificate, Dr. Watson listed respiratory failure as the immediate cause of death, due to bacterial pneumonia, fungal pneumonia, and chemical inhalation.
In terms of medical testimony, the Commission had before it the depositions of two physicians: Dr. Jimmie Gilbert, a pulmo-nologist, who was retained by appellee to review the medical records, and Dr. Richard Dietzen, the respiratory specialist who treated Slaughter at the hospital. Dr. Gilbert testified that chlorine gas is a pulmonary irritant and that severe exposure can lead to lung injury, pulmonary edema, and death. It was Dr. Gilbert’s opinion, however, that Slaughter’s exposure to chlorine gas played no significant role in Slaughter’s demise. This opinion was based on the presence of Slaughter’s preexisting conditions and on the fact that Slaughter had not sought immediate medical attention. Dr. Gilbert believed that Slaughter’s death was caused instead by pneumocystis carnii, a parasitical infection commonly associated with HIV. Dr. Gilbert testified, however, that he would defer to Dr. Dietzen in the matter because his was a more informed opinion, since Dr. Dietzen had treated Slaughter in the hospital.
Dr. Dietzen testified that Slaughter had preexisting conditions of emphysematous bullae, a more advanced form of emphysema, and COPD, which overlapped with the emphysema and Slaughter’s habit of smoking. The presence of bullae indicated that Slaughter’s lungs had been significantly damaged by the emphysema, but he said that the damage did not necessarily correlate with decreased lung function. Contrary to Dr. Gilbert’s assertion, Dr. Dietzen found no clear evidence of pneumocistis carinii, and he opined that Slaughter did not have pneumocystis. Although Slaughter’s CD4 count was low, evidencing the presence of HIV, he said there was no bacterial or fungal pulmonary infection. He stated that a person could be infected with the HIV virus and not show any symptoms for a number of years. He said that Slaughter, with the history of HIV and smoking, was on a course that would have eventually required him to seek medical attention. Dr. Dietzen testified, however, that once diagnosed with HIV, a person can live a fairly normal life for an extended period of time with appropriate treatment.
It was Dr. Dietzen’s opinion that the chemical inhalation set a process in motion where Slaughter’s lungs began to deteriorate with alveolar and bronchiolar damage, which occurred in a setting of decreased defenses due to HIV and smoking. He said that chlorine is a well-known injurant to the airways of the lungs that forms hydrochloric acid within the tissues of the bronchi and alveoli, resulting in bronchiolitis or inflammation of the airways “from top to bottom all the way down to the air sac.” He testified that the chlorine exposure was a “significant inciting event” that was “greater than fifty percent” among the multiple causes of Slaughter’s respiratory failure.
In its decision, the Commission found that Dr. Dietzen’s opinion as to causation was more credible than that of Dr. Gilbert. The Commission also accepted that Slaughter’s exposure to chlorine gas qualified as an “unusual and unpredicted incident” under Ark. Code Ann. § 11-9-114 but determined that the chemical inhalation was not the major cause of his physical harm “in relation to other factors.” The Commission reasoned that Slaughter’s exposure to chlorine gas was “but one factor” leading to his respiratory failure, based on the following excerpt from Dr. Dietzen’s testimony when he was being questioned by appellees’ attorney:
Q. Back again to the chlorine. You found physical findings that suggested deviation formed [sic] normal but those findings could be consistent with other disease process or with chlorine inhalation?
A. Yes.
Q. So you can’t really tell which one it was then?
A. We’re discussing basically a nature of contributory processes here. To say that I can’t really tell which one it was is to create the impression that it had no relevance or that I think it had no relevance.
Q. The fact that your physical findings could just as easily be one disease process that Mr. Slaughter had in his body as well as it could be the other one.
A. The physical findings could have a multitude of explanations. The disease process could have a multitude of explanations. My opinion is that the contribution by the chlorine gas inhalation into the evolution of the process that led to his death.
Q. So what I think I hear you saying is that the chlorine inhalation may have aggravated his underlying condition?
A. Yes.
Q. May have precipitated the aggravation or started things off more.
A. Yes.
Q. If you were to take those items that Mr. Slaughter already had in play and put them on a balance like you see with scales of justice, and you piled them up on one side and then you put the chlorine as a causative factor on the other side, which side would weigh heavier?
A. The heaviest weight in you analogy would lay to the preexisting factors.
Q. So the chlorine would play a role in Mr. Slaughter’s illness but it would not be the major cause, meaning more than fifty percent of the problems Mr. Slaughter had?
A. It could be as what we’re dealing with is the straw that breaks the camel’s back. Where you can phrase it as you did where you’re weighing the contributory causes or you could phrase as you had these contributory causes was this something that tipped him over to become symptomatic and therefore led to his hospitalization.
Q. Well if it were the tipping point that would be dependent upon something being tipped.
A. Yes.
Appellant’s argument that substantial evidence does not support the Commission’s decision is well taken. In workers’ compensation law, an employer takes the employee as he finds him. Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). We have been steadfast in our interpretation of Ark. Code Ann. § 11-9-114 that preexisting conditions do not preclude a finding that a work-related incident is the major cause of physical harm. Cloverleaf Express v. Fouts, 91 Ark. App. 4, 207 S.W.3d 576 (2005) (affirming decision that strenuous work activity was the major cause of the employee’s physical harm even where there was a history of serious cardiac illness); Huffy Service First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002) (affirming decision that work conditions were the major cause of the employee’s heart attack despite history of arterial blockage). For instance, in Williford v. City of North Little Rock, 62 Ark. App. 198, 969 S.W.2d 687 (1998), Williford was a fireman who died of a heart attack within forty-eight hours of engaging in a strenuous performance test in hot weather. Although he had displayed no previous symptoms of a heart condition, his autopsy revealed chronic pulmonary disease, hypertension, COPD, and diabetes. We reversed the Commission’s denial of benefits because the Commission ignored the pathologist’s opinion that, despite his preexisting conditions, the agility test was the major cause of the heart attack.
Although the previous cases that have come before us involved heart attacks, the law we must apply to the facts of this case is the same. Here, Slaughter showed no signs of acute illness or respiratory distress prior to his inhalation of chlorine gas. The record is clear that Slaughter experienced a downward spiral in his health after the accident. In denying benefits, the Commission singled out one portion of Dr. Dietzen’s testimony to find that the exposure to chlorine gas was “but one” cause of Slaughter’s physical harm. However, to say that Dr. Dietzen considered the exposure to chlorine gas as simply one cause of Slaughter’s physical harm is a mischaracterization of Dr. Dietzen’s opinion. On the contrary, Dr. Dietzen was resolute in his opinion that the inhalation of chlorine gas was the major precipitating event that led to Slaughter’s respiratory failure. We are firmly convinced that fair-minded persons with the same facts before them could not have reached the decision made by the Commission. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Robbins and Glover, JJ., agree.
There was some dispute as to the actual date of the occurrence, but the parties stipulated that the accident took place on this date.
Although this infection was considered as a possible diagnosis, Dr. Dietzen testified that it was not confirmed upon further testing. | [
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Larry D. Vaught, Judge.
Appellant Jimmy Bumgardner was charged by felony information with possession with intent to deliver methamphetamine and possession of drug paraphernalia. He entered a conditional-guilty plea and was sentenced to ten years’ imprisonment. On appeal Jimmy argues that the trial court erred in its denial of his motion to suppress. We agree and reverse his conviction.
According to the testimony presented during the suppression hearing, this case began on April 20, 2004, when Officer Daniel Creasey approached the home occupied by Jimmy and his wife, Michelle Bumgardner. Michelle was standing on the porch of the home with a baseball bat in hand. She was shouting obscenities at her husband and instructing him to vacate the property. Jimmy asked Creasey for permission to leave the premises, but Creasey refused the request, explaining that he was investigating “this crime in progress” and that if he made “any determination that [Jimmy had] not done anything wrong, then [he] could leave.” Creasey then called for “backup,” and followed Michelle into the home but stayed at the front door of the home “so he could watch [Michelle] and watch [Jimmy] at the same time and keep them split up until [his] backup unit could arrive.” Creasey explained that he always called for backup in situations involving domestic violence because “you don’t never want to go by yourself, it’s a dangerous call and anything can happen.”
Officer Daniel Richey responded to the call and was asked to “stay with [Jimmy] on the front porch.” At the hearing Richey testified that once he arrived at the scene he remained “within about five feet” of Jimmy so that he could “keep an eye on both of them.” Creasey then conducted an interview of Michelle, where he learned that she and Jimmy had been involved in a disturbance the previous evening, and this was a continuation of their earlier dispute. Creasey stated that he warned Michelle that he “could have possibly charged her with domestic assault.” After this admonition, Creasey noted that Michelle calmed down and ex plained that she was angry because she believed that Jimmy had her keys and would not give them back.
At the suppression hearing Creasey conceded that at this point in his investigation he had determined that no charges would be filed, and neither party would be arrested. Indeed, Creasey stated that he looked at Jimmy “as the victim.” However, Creasey decided to remain at the scene “in the spirit of community policing” and help Michelle recover her missing keys. He approached Jimmy and asked if he had Michelle’s keys; Jimmy stated that the only keys he had were his own. Richey then inquired if Jimmy would allow the officers to conduct a pat-down search. Jimmy agreed, but no keys — other than his own — were found. The officers then conducted a fruitless search of the couple’s front yard in an attempt to locate the missing keys. At this time, approximately twenty minutes had elapsed since the officers’ initial arrival at the scene.
Next, Creasey approached Jimmy, who remained under Richey’s watch, and asked for permission to search his vehicle. According to Creasey, Jimmy stated that his truck was locked, then handed Creasey the keys and said, “sure, go ahead.” While Creasey was conducting the search of Jimmy’s truck, officer Richey remained with Jimmy. Although Creasey failed to locate the “missing keys” during his extensive search of Jimmy’s truck, he did find various items used in the manufacture of methamphetamine. Following Creasey’s discovery, Jimmy was placed under arrest.
After his arrest, Jimmy filed a motion to suppress the evidence recovered from his truck because his consent was invalid. Specifically, he argued that he was unlawfully detained in violation of Ark. R. Crim. P. 3.1 and the Fourth Amendment. The State responded that Jimmy was free to leave once Creasey determined that no crime had been committed and that because Creasey chose to remain in the front yard and to cooperate with the officers, his consent was voluntary. The trial court denied the motion, and Jimmy entered a conditional-guilty plea pursuant to Ark. R. Crim. P. 24.3(b).
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). We begin our review with an examination of Ark. R. Crim. P. 3.1, which permits a detention without arrest under certain circumstances:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Based on the language contained in Rule 3.1, we are satisfied that Creasey’s initial stop at the Bumgardner home and his preliminary investigation were legitimate functions of his duty as a law-enforcement officer. An officer patrolling a neighborhood who observes any angry exchange, especially one involving a weapon, between two parties certainly has a right to stop and make inquiries. Further, we are not troubled by the fact that Creasey did not permit Jimmy to immediately leave the scene. It was prudent for Creasey to ask Jimmy to remain at the scene until a proper investigation of the high-tempered exchange could be completed.
It is what happened after Creasey determined that Jimmy had committed no crime and was the “victim” that is troubling to us. After Creasey made this determination, the continued detention of Jimmy — under Richey’s watchful eye — constituted a seizure within the purview of the Fourth Amendment. We are not convinced, as the State argues, that Jimmy should have known that he was free to leave once Creasey had spoken with Michelle and determined that she was not injured or being threatened. Jimmy specifically requested permission to leave the scene and was told that he must remain until the investigation was completed. He was never told that he was free to go or that the investigation had been completed. To the contrary, for twenty minutes Jimmy remained under Richey’s care while the officers were actively engaged in a “missing keys” investigation. Jimmy was asked to submit to a pat-down search, asked to produce the keys he had been accused of stealing or throwing in the yard, and asked to submit to a search of his vehicle.
The State would have us require Jimmy to determine the moment the officers’ investigation of domestic abuse (which justified his detention) ended and their altruistic key-locating assistance (which did not justify his detention) began. This would require far more of Jimmy than is reasonable or — in this case — possible. After the officers determined that Jimmy was not a suspect, but a victim, the officers conceded that they had no reasonable suspicion to continue his detainment. However, Jimmy was not told that he was free to leave and had no indication that his right to mobility had been restored.
Because he was illegally seized at the time he submitted to a search of his vehicle, we conclude that Jimmy’s consent was not an act of free will of sufficient force to purge the primary taint. See Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Accordingly, we reverse and remand this case with instructions that the evidence seized from Jimmy’s truck must be suppressed because it is “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
Reversed and remanded.
Heffley and Miller, JJ., agree. | [
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Karen R. Baker, Judge.
A jury in Polk County Circuit Court convicted appellant, Leisa Eaton, of theft by receiving, in violation of Ark. Code Ann. § 5-36-106(a) (Supp. 2003). She was sentenced to six years’ imprisonment in the Arkansas Department of Correction. On appeal, appellant challenges the sufficiency of the evidence. Specifically, she asserts that the State failed to prove that she possessed and sold stolen property, knowing or having good reason to believe it was stolen. We affirm.
The charge in this case arose from the theft of three four-wheelers from a deer club and appellant’s subsequent possession and disposal of those four-wheelers. Larry Attaway, a resident of Texarkana, Texas, was a member of a deer club located three miles east of Naples, Texas, in Cass County. He and another member of the deer club, Roger Adams, testified that several members of the club kept campers and four-wheelers on the property where the deer club was located. Mr. Attaway had two four-wheelers that he had taken to the deer club, a 2000 red Honda worth at least $2,500, and a 2002 Polaris 325, with camouflage paint and a winch, worth approximately $5,000. Mr. Adams testified that he had a blue 2003 Yamaha Kodiak 400 cc, worth more than $2,500, that he used at the deer club. Both men testified that before the first week in July 2005, their three four-wheelers were stolen from the deer club.
Mr. Attaway also testified that after the four-wheelers were stolen from the deer club, appellant contacted Monty Latham, another member of the deer club, alleging to have information on the location of the stolen four-wheelers. She also contacted Mr. Attaway on his cell phone. Mr. Attaway testified that, in exchange for retrieving the four-wheeler, appellant asked that the club members not press charges related to the stolen four-wheeler and, if she traveled to Texarkana, that she receive money for travel expenses. Mr. Attaway testified that he first met appellant on a day when she, the deer club members, and the sheriff s deputies met “at Cove,” where “[appellant] was trying to get locations on where they could recover these [four-wheelers].” Appellant told the deer club members and the deputies that the four-wheelers could be located at the houses of both Brandon Eaton (appellant’s ex-husband) and Mr. Roberts. The deputies were unsuccessful in their attempt to find the four-wheelers at either location. Nonetheless, Mr. Attaway stated that in return for appellant meeting them and offering them information on the location of the four-wheelers, one of the deer club members gave appellant approximately $650. They also “put gas in her car and fed her.” Mr. Attaway testified that from that point forward, the investigation was left to the sheriffs deputies.
Deputy Peebles testified that he was responsible for the investigation of the theft of the three four-wheelers that had been stolen from the deer club. The investigation revealed that the Polaris had been sold to Robbie Dixon, another of appellant’s ex-husbands. The Polaris was in Robbie Dixon’s possession and was recovered from him. The Yamaha was recovered in Zephra, Oklahoma. Deputy Peebles testified that appellant and Brandon Eaton were the two people suspected of committing the theft of the three four-wheelers. Deputy Peebles obtained warrants for both appellant and Brandon, and Brandon was later arrested. Deputy Peebles conducted an interview with appellant. He testified that during that interview, appellant stated that her husband had stolen the four-wheelers and that she had taken one of them. She admitted to having knowledge that the four-wheelers were stolen and to riding the four-wheelers around “quite often.” Deputy Peebles testified that she further admitted to selling the Polaris to Robbie Dixon for $1,200, in an effort to obtain the money she needed to leave Brandon Eaton, her husband at the time.
Kayla Blake, an acquaintance of appellant’s, testified that in July, the same month that the four-wheelers were stolen, she and her husband rode over to appellant’s house on their four-wheelers. Only appellant and Robbie Dixon were in the yard. As they pulled up to appellant’s house, they watched as Robbie Dixon loaded a camouflage four-wheeler with a winch into the back of his truck. Before he left, he wrote out a check and handed the check to appellant.
Robbie Dixon testified that he worked for a company out of Oklahoma and that he traveled approximately nine to ten months out of the year. He and appellant had one child together, and they were divorced in 1997. Robbie testified that while he was traveling for work, appellant called him to ask a question about their daughter. During that conversation, appellant also asked him if he knew anyone that would be interested in buying a four-wheeler. She revealed to him that she wanted to sell it in order to obtain the money she would need to find a place to live after she left her husband. Robbie later ran into appellant and their daughter at the local Hatfield Super Stop. Appellant and their daughter were riding the Polaris 325. Appellant asked him if he was still interested in buying the four-wheeler. After taking the four-wheeler for a test ride, Robbie decided to purchase it for $1,200. He went to appellant’s residence to purchase the four-wheeler. He gave her $300 in cash and the balance of $900 with a check. After purchasing the four-wheeler, Robbie left town for work purposes. While out of town, he received a call from Sheriff Mike Oglesby, informing him that the four-wheeler was stolen. Once the VIN number was confirmed, Robbie agreed to return the four-wheeler to Polk County. He testified that just after Sheriff Oglesby called him, appellant also called him “in a panic state” and informed him that he needed to return the four-wheeler because it was stolen. Robbie testified that he “already knew [the four-wheeler was stolen] and [he] was trying to stay neutral in the deal.”
Appellant testified that her then husband, Brandon Eaton, arrived home one day with the four-wheelers. She gave the following testimony regarding her thoughts on the day that Brandon brought the four-wheelers to their home: “I didn’t know where they came from. I knew he hadn’t worked. I knew he was into a lot of drugs with different people. I didn’t know what to think. I didn’t know if they were stolen. I had no idea. That’s what I’m saying. I just knew he wasn’t working.” Appellant testified that she “had no idea where [the four-wheelers] came from, I didn’t at the time.” She testified that Brandon was abusive and that she was afraid of him. Because she wanted to leave him and because she was without any money to do so, she decided to sell one of the four-wheelers to Robbie Dixon. She stated that at the time she sold the four-wheeler to Robbie; she did not know it was stolen. Just after selling the four-wheeler to Robbie, she overheard a conversation between Brandon and his cousin as to how they had obtained the four-wheelers. This information frightened her, and as a result, she called deer club member Monty Latham (appellant’s former employer and someone she had known for years) to see if any of the four-wheelers were missing from the deer club. Mr. Latham asked her to get the VIN numbers off the four-wheelers and to come to Texarkana. She told Mr. Latham that she was unable to make the trip because she did not have money for gasoline. She stated that Mr. Latham offered to pay for her gasoline, in addition to any other expenses, if she would come to Texarkana. Appellant drove to Texarkana, where Mr. Latham was able to make an identification, from the information that appellant had, that the four-wheelers that she had seen were the ones stolen from the deer club. The members of the deer club followed appellant to Cove, where she called the deputy and asked him what she should do with the information she had. The deputy met appellant and the deer club members at Lewis Lumber, and she told the deputy where she thought the four-wheelers might be or where Brandon might have taken them. She also stated that she contacted Robbie to inform him that the four-wheeler that he had purchased was stolen.
On cross examination, appellant admitted that in her written statement, she said that the four-wheelers were “stolen.” A portion of appellant’s written statement is as follows:
Back in April or May 2005, Brandon came up with some stolen ATV’s. I did not [k]now where they came from but I knew Brandon had no money and he had been selling dope to make money. I told my dad about it and he told me to turn him in. I said no cause I knew I would get arrested for them too.
The ATV’s were a green Polaris, a blue Yamaha and another red one. I saw the red one only briefly in the back of Brandon’s truck going out the driveway. I suspected they were stolen because we had no money.
However, she stated on cross examination that she now disputed the portion of her written statement stating that the four-wheelers were stolen. Appellant testified that she wanted Deputy Peebles to change her written statement to reflect that she did not know where the four-wheelers came from and that she knew only that Brandon did not have a job and that he was into drugs.
Appellant also testified that Brandon owed Scott Jacobs, a resident of Oklahoma, money for drugs. Appellant testified that while she was afraid of Scott, she had gone to his house in Oklahoma on one occasion to pick up Scott’s wife because he had beaten her up “real bad.” While at the house, appellant saw the red Honda four-wheeler that was stolen from the deer club.
Overall, appellant testified that she felt “that it was wrong, what happened to the gentlemen from Texas.” She wanted them to know the truth about their four-wheelers. She met with Deputy Peebles in an attempt to help the deer club members recover their four-wheelers, and she contacted Robbie Dixon, who had purchased one of the four-wheelers from her, to ask him to return it.
Mr. Latham, also a member of the deer club, testified that he had known appellant for several years and that she had worked for him at one time. He testified that in the Spring of2005, he invited Brandon and appellant out to the deer camp for a “work day.” He stated that she rode the four-wheelers around the property that day and that she was very familiar with all of the equipment that the men had at the club. He stated that she phoned him around the middle of July 2005 and asked him if any of the four-wheelers had been stolen. She told him that she might have some information as to where he could locate the four-wheelers. Mr. Latham testified that as he spoke with appellant, he became suspicious of her story. Then, when she went to Texarkana to meet him to discuss the location of the stolen four-wheelers, she brought back items, such as knives, black powder, hunting material, and bags, that were stolen out of the trailers at the deer club. At the time Mr. Latham spoke with appellant, she was angry with Brandon and said that she was going to try to get back at him. She made the statement that, “well, I think [Brandon] did it.” However, Mr. Latham felt that the information that she had given him about the stolen four-wheelers “put her there, not Brandon.” Mr. Latham testified that he felt appellant was being untruthful and that she was just trying to place the blame on someone other than herself.
Brandon’s father, Thomas Eaton, testified that he was at Brandon and appellant’s house one day when she drove up in Brandon’s truck. The truck was pulling a trailer with four-wheelers loaded on it. Thomas asked Brandon if he could purchase one of the four-wheelers, but Brandon refused, stating that “you don’t want one.” Thomas testified that when he saw appellant drive up pulling the trailer with the four-wheelers, he assumed that the four-wheelers belonged to Brandon and appellant.
At the conclusion of the State’s case, appellant’s counsel made a motion for a directed verdict, asserting that the State had not shown that appellant received, retained, or disposed of stolen property of another person knowing that the property was stolen or having a good reason to believe that it was stolen. The motion was denied. Appellant’s counsel renewed the motion for a directed verdict at the conclusion of all the testimony. Again, the court denied the motion. Ultimately, the jury convicted appellant of theft by receiving, in violation of Ark. Code Ann. § 5-36-106(a).
In reviewing a challenge to the sufficiency of the evidence, this court will affirm if there is substantial evidence to support the verdict. Pack v. State, 73 Ark. App. 123, 130, 41 S.W.3d 409, 414 (2001). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. The evidence, whether direct or circumstantial, must be of sufficient force that it compels a conclusion with reasonable and material certainty. Barnett v. State, 68 Ark. App. 38, 3 S.W.3d 344 (1999).
On appeal, appellant asserts that the trial court erred in finding that appellant possessed and sold stolen property, knowing or having good reason to believe it was stolen. A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Supp. 2003). For purposes of this section, “receiving” means acquiring possession, control, or title or lending on the security of the property. Id. § 5-36-106(b). Theft by receiving is a Class B felony if the value of the property is two thousand five hundred dollars ($2500) or more. Id. § 5-36-106(e)(1). Except where a statute provides otherwise, a criminal intent is essential to the offense of receiving or concealing stolen goods and related offenses. 76 C.J.S. Receiving Stolen Goods § 9 (2006).
There is no dispute that appellant possessed and controlled the property at issue. There is no dispute that the property at issue was stolen. Appellant only challenges the jury’s finding that she knew or had good reason to believe that the property was stolen. We hold that the evidence was sufficient to allow the jury to find — without resorting to speculation or conjecture — that appellant knew or had reason to believe that the four-wheelers were stolen.
Under our statute it is essential that the property be received with knowledge that it was stolen and with intent to deprive the owner thereof of his property. Williams v. State, 202 Ark. 951, 154 S.W.2d 809 (1941). Absolute knowledge that goods have been stolen is not necessary for a conviction of receiving stolen goods, but belief of the accused caused by facts and circumstances that goods have been stolen may be sufficient. Kingv. State, 194 Ark. 157, 106 S.W.2d 582 (1937). Because intent can rarely be proven by direct evidence, the factfinder is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. Diggs v. State, 93 Ark. App. 332, 219 S.W.3d 654 (2005).
Both in her written statement to the police investigating the theft and in her testimony at trial, appellant stated that she knew that Brandon had no money or resources to purchase the four-wheelers that he brought to their residence. The testimony of Mr. Latham established that appellant was generally familiar with the four-wheelers and other equipment kept at the deer club and had recently ridden at least one of the four-wheelers at the deer club prior to the theft. Mr. Latham also explained to the jury that, in the course of appellant’s contacting him about the stolen property, appellant made comments that she was angry with Brandon and wanted to seek revenge against him. Appellant also brought equipment, such as knives and hunting materials, to Mr. Latham that had been stolen from the deer club but not previously identified by Mr. Latham to appellant as missing from the deer club.
The trier of fact has a right to accept that part of the defendant’s testimony it believes to be true and to reject that part it believes to be false. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). The trier of fact may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999).
From these circumstances, the jury could infer that appellant knew or had reason to know that the four-wheelers were stolen. She was at the deer club just prior to the theft of equipment and four-wheelers with which she was familiar as to their use and location. She was in possession of the stolen property, riding and selling one four-wheeler to her ex-husband prior to it becoming public knowledge that the four-wheelers were stolen. Furthermore, she made statements in her alleged attempt to help the deprived owners locate their property that she wanted revenge on her husband whom she accused of committing the theft. Accordingly, there was sufficient evidence for the jury to find that appellant knew or had reason to know that the property at issue was stolen.
Affirmed.
Gladwin and Bird, JJ., agree. | [
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