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Brian S. Miller, Judge.
Appellants James and Sonja Burton petitioned the Faulkner County Court to establish a roadway by necessity across the lands of appellees Steve and Lisa Hankins to access appellants’ property. The county court denied the petition. On appeal de novo, the Faulkner County Circuit Court affirmed the county court and denied the petition. On appeal to this court, appellants contend that the lower courts erred in their interpretation of the applicable statutes and that their decisions were against the preponderance of the evidence. We affirm.
Appellants are the owners of eighty-seven acres of rural land in Faulkner County. Appellees own land adjacent to and immediately south of the eastern half of appellants’ property. Junior Hankins (not a party herein) is the brother of appellee Steve Hankins and owns the land immediately south of the west half of appellants’ land and immediately west of appellees’ land.
Appellants’ land is landlocked, having no public road for access to the property. Almost all of appellants’ property, except a tract at the southwest corner, is low and subject to flooding. Approximately thirty acres of the west half is a slough that extends to appellants’ southern boundary and over onto the northern part of the lands of appellees and Junior Hankins. The slough is impassable from west to east by automobile or truck without leaving appellants’ lands and going onto the lands of Junior Hankins or appellees. The east forty acres of appellants’ land is low, and Greenbrier Creek flows through it, but approximately thirty acres on the east side is dry and usable for part of each year.
Appellants sought to negotiate a roadway across appellees’ land but were unsuccessful. Appellants then filed this case in the county court, seeking to establish a private road under Ark. Code Ann. §§ 27-66-401 to -404 (Repl. 1994). They also tendered $2,500 as the estimated costs of the proceedings.
The county court, after appointing three viewers and considering each viewer’s separate report, denied appellants’ petition. The court concluded that the requested route was not the “proper route.” Appellants then appealed to circuit court.
At trial, appellant James Burton testified that he was seeking access to the east forty acres of his property over the southeast portion of appellees’ property. He realized that it would take a large amount of fill to build a road across the slough. He opined that, although there were several possible routes across appellees’ land, the requested route was the most convenient to appellees. Burton said that he wanted to save some of the marketable timber on the east side of his land and to remove beaver dams from the creek. On cross-examination, he admitted that he wanted to use his land for a hunting club. He also stated that he did not want to build a road; he just wanted access to his property. Burton, however, said that he would use the same route to remove the timber from his lands. He said that his efforts to sell the land had been unsuccessful because of the lack of access. Burton also indicated that the permission of the Corps of Engineers may be necessary because the property may be considered protected wetlands.
Carlton Burnett testified that he owns land south of appel-lees, as well as lands that abut the southwest corner of appellants’ land. He stated that it would not be possible to access appellants’ property through his land and continue to the east half of appellants’ property without driving across a third party’s lands. Burnett also opined that, based on his experience as a builder, it would not be economically feasible to build a road to access the eastern part of appellants’ property from the southwest corner. He also said that a road would be submerged for part of the year. Burnett said that the best of several bad options for the road was along appellees’ east line, as proposed by appellants. According to Burnett, a road with year-round access would have to be on top of a levee. Burnett also said that there was no marketable timber on appellants’ eastern property.
Ronnie Kelly, a viewer appointed by the county court, testified that he concluded that the best way to access appellants’ property was along appellees’ east line. He stated he went to all parts of appellants’ lands that he could get to, but was unable to get to certain areas because it was too wet. He said that he only considered one way across appellees’ property, along the east line, which he concluded was the most direct route. Kelly stated that the best route with regard to the convenience of both appellants and appellees would be to take the old road that went up the middle of appellees’ lands, even though that would divide those lands. As for a road entering from appellants’ southwest corner, Kelly said that two other owners would be involved and another road would be necessary to cross the slough.
Viewer Ricky Beene testified he was asked to look at three different ways to get to appellants’ lands and determine which would be the driest and easiest to build a road. The first route was along appellees’ east line; the next route was down and across the lands ofjunior Hankins; and the third route was a road that entered at appellants’ southwest corner. Beene concluded that this third route, across Carlton Burnett’s lands, was the easiest way to appellants’ lands. He said that a road across appellees’ property would require considerable fill and a drainage system to make a road feasible. He admitted that he was not told to only look at routes across appellees’ land. He also said that he was not aware that appellants’ land had a piece of high ground or that there was a slough across appellants’ land.
The third viewer, Richard McClung, did not testify at the circuit court trial. His report to the county court favored a road to the southwest corner of appellants’ property.
James Hankins testified that he once owned the property now owned by Carlton Burnett. He said that it would “take a good readjust to get your equipment and materials in” to build a road along appellees’ east line. He said that a bridge would also be necessary. Hankins explained that, in building a road, the flooding would get worse because a raised road would act as a dam and retain water. He opined that a road at either end of appellants’ property would be expensive to build but that the western route would be less expensive because it is higher ground. He said that appellants’ land did not contain any marketable timber and was usable only for hunting.
Appellee Steve Hankins testified that there was less than twenty feet between his mobile home and the east line of his property. He described beavers in the creek flowing across appellants’ and his lands as being a major problem. He opined that the route across his eastern line would inconvenience him more than it would benefit appellants because the road would divide his property. He suggested that a road through Carlton Burnett’s property would be better. Hankins stated that he did not want anyone using the road to go over the rest of his property. He agreed that a raised road would act as a dam and result in a lake being created.
Hankins testified that he had an agreement with the U.S. Fish and Wildlife Service calling for him not to harvest any trees for thirty years. He said this agreement may be impacted by a road. He stated that, if a road were built along his eastern line, approximately ninety trees would have to be removed.
The circuit court issued a letter opinion affirming the county court without explanation. Judgment was entered accordingly. Appellants timely filed their notice of appeal.
In reviewing this matter, we affirm unless the decision of the trial court is clearly erroneous. Nation v. Ayres, 340 Ark. 270, 9 S.W.3d 512 (2000); Bean v. Nelson, 307 Ark. 24, 817 S.W.2d 415 (1991). A decision 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. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003).
Appellants raise one point on appeal with two subparts, that the county court and the circuit court did not follow the statutory procedures concerning the qualifications, instructions, and duties of the viewers and that the decisions by the lower courts were against the preponderance of the evidence. Appellants first argue that the county court and the circuit court did not follow the statutory procedures for, among other things, appointing and instructing the viewers. Unlike Armstrong v. Cook, 243 Ark. 230, 419 S.W.2d 308 (1967), cited by appellants, this specific argument was not made to either court below. It is well settled that we do not consider arguments made for the first time on appeal. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004). Therefore, the only argument that is properly before this court is that the circuit court’s decision is against the preponderance of the evidence.
Appellants rely on Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906), where the supreme court set out the test of necessity and the circumstances to be considered by the court in deciding whether to open a road. The supreme court held that the law does not require that the petitioner should establish an absolute necessity for the road, by showing that he had no other means of reaching the public highway, but only a reasonable necessity for the road. The Pippin court also said that, in determining the necessity of a road, the county court should take into consideration “the convenience and benefit of the limited number of persons it would serve, but should consider also the injury and inconve nience it will occasion the defendant through whose place it is proposed to extend [the road].” 78 Ark. at 21, 93 S.W. at 65. This holding has been consistently followed in subsequent cases involving the establishment of a private road. See, e.g., Nation, supra; Bean, supra; Castleman v. Dumas, 279 Ark. 463, 652 S.W.2d 629 (1983); Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983); Ahrens v. Harris, 250 Ark. 938, 468 S.W.2d 236 (1971); Riggs v. Bert, 245 Ark. 515, 432 S.W.2d 852 (1968); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Roth v. Dale, 206 Ark. 735, 177 S.W.2d 179 (1944); Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936); Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921); Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920).
The Pippin court also noted that it was for the court, after considering the factors, to determine whether the road was necessary within the meaning of the statute. Appellants recognize this but cite cases where a slough across the petitioner’s land resulted in a finding of necessity. See Roth, supra; Pippin, supra. The Pippin court, however, identified a balancing test that should be applied in determining whether a road is “necessary” pursuant to the statute. Before a road is deemed “necessary,” factors such as how wet, swampy, and impassible the petitioner’s land is must outweigh other factors such as the inconvenience and injury to the landowner whose land will be taken. 78 Ark. at 21, 93 S.W. at 65.
Appellants also argue that they are entitled to a road across appellees’ land because they cannot travel from the west side of their property to the east side because of the slough. That is not the test for opening a road under Ark. Code Ann. §§ 27-66-401 to -404. Those statutes provide that a road may be opened if a landowner has no access from his property to a public road. The fact that a landowner cannot travel across every part of his property is irrelevant to a determination of the necessity of a road to access a public road, except as it relates to a factor such as the cost between two possible routes.
Citing Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), appellants argue that, should we affirm the trial court, they will be left without a remedy in the form of a road to access their property. That, however, is the result of the manner in which they went about seeking the road. The statutory scheme allows the viewers appointed by the county court to consider not only the route proposed but also any other route which they may deem proper. Ark. Code Ann. § 27-66-402. Appellants did not give notice to other surrounding land owners or make them parties to this action. Ark. Code Ann. § 27-66-401. Therefore, the court below could not open a road across the lands of nonparties even if it should find it to be the best route.
In concluding that the road was not necessary within the meaning of sections 27-66-401 to -404, the trial court could have properly considered as factors the fact that a permit may be required from the Corps of Engineers; that the cost of building the road would be several thousands of dollars and require a great amount of fill; that appellants did not want to build a road; and that appellants were interested in selling the property to a hunting club, thereby increasing the burden to appellees in the number of people driving over appellees’ lands. Further, in the event appellants do not sell the property or establish a hunting club, they would be the only people to benefit from the road. Therefore, we cannot say that the circuit court’s decision to deny the road is clearly erroneous.
Affirmed.
Robbins and Glover, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellants argue that substantial evidence does not support the Arkansas Workers’ Compensation Commission’s finding that appellee, Cynthia Davis, sustained a compensable injury while working for appellant Wal-Mart. Specifically, appellants contend that appellee’s physician failed to state his conclusion regarding causation within a reasonable degree of medical certainty. We affirm.
Appellee testified that on February 25, 2005, she fell from a ladder while at work. She continued to work, but approximately a week later, began to experience pain in her arm, shoulder, and neck. She, however, did not associate her injury — herniated discs at C5-6 and at C6-7 — with her job-related accident until May 27, 2005, when she was seen by a neurosurgeon, Dr. Anthony Capocelli. In a letter, Dr. Capocelli wrote as follows:
[Appellee] has been a patient under my care since 5/27/2005 at which time we had seen her for chronic neck pain and radicular symptomatology that she suffered after an apparent fall while at work. Apparently within a one month period after the fall the patient developed early significant radicular symptomatology though apparently the main onset was mostly about a week or so after the initial injury. However, subsequent work-up did indeed reveal the patient had a significant disc herniation and by her report there are no other traumatic injuries between the time of her fall from a ladder and the onset of symptomatology. It is believed that the jail brought about the injury to the neck.
Historically the patient has some history of low back and thoracic spasms and myofascial syndrome but no history of cervical disease and no radicular symptomatology in the right arm. To that end it is my belief that based on the available history and objective findings that this patient had.a work injury suffered when she fell from a ladder.
(Emphasis added.)
The administrative law judge (ALJ) found that appellee proved that she sustained a compensable injury to her cervical spine and right upper extremity when she fell off the ladder at work. In awarding benefits, the ALJ noted, “Dr. Capocelli has opined that based on [appellee’s] report of her fall that her injuries are a result of this event.” The Commission affirmed and adopted the ALJ’s opinion.
Appellants assert on appeal that the only evidence presented to support a causal relationship between appellee’s injury and her employment was the letter written by Dr. Capocelli. Appellants argue that Dr. Capocelli’s opinion does not establish causation because his opinion was not stated within a reasonable degree of medical certainty, nor with any qualification of his degree of certainty.
We are mindful of our statutory requirement that “[mjedical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102(16) (B) (Supp. 2005). The Arkansas Supreme Court, however, “has never required that a doctor be absolute in an opinion or that the magic words ‘within a reasonable degree of medical certainty’ even be used by the doctor,” but rather, “has simply held that the medical opinion be more than speculation.” Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 765 (2001). The court observed that “ifthe doctor renders an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.” Id.
In Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001), the employer argued that a physician failed to state his medical opinion regarding permanent impairment within a reasonable degree of medical certainty. We held that the doctor’s opinion “met this requirement in that he was not equivocal in his assessment of permanent impairment in the form of herniations.” Id. at 165, 47 S.W.3d at 908. Here, Dr. Capocelli concluded, without equivocation, that appellee suffered a work injury when she fell from a ladder. Analogously to Polk County, because Dr. Capocelli’s opinion regarding causation was unequivocal, we conclude that his opinion was stated within a reasonable degree of medical certainty.
Affirmed.
Griffen and Baker, JJ., agree. | [
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Robert J. Gladwin, Judge.
This appeal is from a summary judgment for appellee Farm Bureau Mutual Insurance Company of Arkansas, Inc., declaring that it had no obligation to defend or indemnify appellants Gary Zulpo and his wife, Christie Zulpo, in an action brought against them by appellant James McGrew, as special administrator of the estate of his deceased son, Jeron McGrew. This case presents a legal question that has not been addressed by the courts of Arkansas — whether providing full-time child-care services for compensation in one’s home, on a regular basis, comes within a “business-pursuits” exclusion in a homeowner’s insurance policy. We hold that it does and affirm the trial court’s decision.
In March 2004, Christie Zulpo began babysitting one-year-old Jeron in her home three or more days per week, five or more hours per day, for $100 weekly. On September 2, 2004, Christie, who had an appointment, left Jeron with Gary. Tragically, Jeron died while in Gary’s care. At the time of his death, the Zulpos had a homeowner’s policy with appellee.
In July 2005, James sued Gary for Jeron’s death in the Benton County Circuit Court. In August 2005, appellee brought this declaratory-judgment action against James and the Zulpos, alleging that the personal-liability protection afforded the Zulpos in their homeowner’s policy was subject to the following exclusion: “Unless special permission for coverage is granted by endorsement, certain types of losses are not covered by your policy. Under Personal Liability Coverage and Medical Payments to Others Coverage, we do not cover . . . bodily injury or property damage arising out of your business pursuits[.]” The policy defined “business” as follows: “The word ‘business’ means a trade or profession, or occupation, including farming whether full or part-time. It does not include newspaper delivery, caddying, lawn care nor any similar activity minors normally perform, unless the activity is your full-time occupation.”
Appellee sought a declaration that any liability that Gary might have had to James for Jeron’s death was not covered by the policy because of the business-pursuits exclusion and that it had no obligation to defend Gary in the underlying lawsuit. James filed a counterclaim for a declaration that Gary was entitled to coverage' because he was not engaging in his full-time occupation at the time of Jeron’s death. The Zulpos also filed a counterclaim for declaratory judgment, asserting that, because babysitting is an activity that minors normally perform, their care of Jeron was not included within the business-pursuits exclusion.
In discovery, James stated that he and his wife paid Christie $100 for providing child-care services five days per week in her home on weekdays; that, on more than 75% of the weeks between March 15, 2004, and September 2, 2004, Christie provided child-care services for the McGrews three or more days per week; and that, on an average day, she did so for five or more hours per day. The Zulpos admitted these facts and that, in December 2003 or January 2004, Christie placed a newspaper advertisement for child care; that, on rare occasions, Gary provided child-care services for the McGrews on weekdays in his home; that, on the day Jeron died, Christie provided child care for another child, in addition to Jeron and her own child; that the Zulpos reported $1626 in business income acquired as a result of Christie’s childcare services on their 2004 joint income-tax return; that Christie used flyers to advertise her child-care services; and that neither Christie nor Gary had applied for or received a license to care for children from any federal, state, or local authority.
Appellee moved for summary judgment on the basis of the business-pursuits exclusion. In response, James argued that the business-pursuits exclusion was susceptible to more than one interpretation and, therefore, should be interpreted in favor of the insured and strictly against appellee. He filed Christie’s affidavit, in which she stated that, during the relevant time period, she was employed as a nurse’s assistant by a local hospital from 7 a.m. to 7 p.m. every Saturday and Sunday and that Gary was employed full-time as a mechanic with J.B. Hunt Transportation, Inc. She stated that, during this time, she babysat no more than three children, one of which was her own. James also moved for summary judgment. After a hearing, the circuit court granted appellee’s motion and denied James’s cross-motion. James, Gary, and Christie filed timely notices of appeal.
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact, and the party is entitled to judgment as a matter of law. Smith v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 88 Ark. App. 22, 194 S.W.3d 212 (2004). Once the 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. Id. On review, we must determine whether there are any genuine issues of material fact. Id. In our review, we consider whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. All proof is viewed in the light most favorable to the party resisting the motion, with all doubts and inferences resolved against the moving party. Id. Although an order denying a motion for summary judgment is only an interlocutory order and is not appealable, review of certain interlocutory orders is allowed in conjunction with the appeal of a final judgment. Id. Thus, an order denying summary judgment may be reviewable in conjunction with an appeal of an order granting summary judgment. See id.
The Zulpos argue that Christie’s babysitting was not a business under the policy; in the alternative, they assert that, even if it was a business, it was within the category of activities excepted from the definition of business. James argues that the circuit court erred in granting appellee’s motion for summary judgment and in denying his cross-motion for summary judgment. He argues that the definition of “business” in this policy does not apply to part-time, incidental money-making activities such as babysitting. Pointing out that Gary was a full-time mechanic and that Christie was a nurse’s assistant at the local hospital, he contends that coverage for the claims arising out ofjeron’s death was provided by the policy as a matter of law. He stresses that the insurance policy does not define “business pursuits” and that it does not expressly exclude coverage for injuries arising out of babysitting or child care. He also argues that the exception to the exclusion clearly applied to child care, pointing out that the amount of money Christie received from it was relatively small. In the alternative, he argues that the policy language is ambiguous, leaving issues of fact to be tried.
The law regarding construction of insurance policies is well settled. Smith v. Farm Bureau Mut. Ins. Co., supra. Once it is determined that there is coverage, it must be determined whether the exclusionary provisions in the policy eliminate coverage. Id. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Id. If the language is unambiguous, we give effect to the plain language of the policy. Id. If the language is ambiguous, then we resort to the rules of construction. Id. The construction and legal effect of a written contract are matters to be determined by the court. Id. Provisions of an insurance policy are construed most strongly against the insurance company, which prepared it. Id. If the language of the policy is susceptible to two interpretations-one favorable to the insured and one favorable to the insurer, then the interpretation most favorable to the insured must be adopted. Id. The fact that a term is not defined in a policy does not automatically render it ambiguous. Curley v. Old Reliable Cas. Co., 85 Ark. App. 395, 155 S.W.3d 711 (2004). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Ison v. Southern Farm Bureau Cas. Co., 93 Ark. App. 502, 221 S.W.3d 373 (2006). Usually, whether an activity is a business pursuit is a factual question. Shelter Insurance Co. v. Hudson, 19 Ark. App. 296, 720 S.W.2d 326 (1986); United States Fire Ins. Co. v. Reynolds, 11 Ark. App. 141, 667 S.W.2d 664 (1984).
Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Smith v. Farm Bureau Mut. Ins. Co., supra. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Id. Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a matter of law. Id.
The application of a business-pursuits exclusion to childcare services has not been addressed by the courts of this state. It has, however, been addressed in many other jurisdictions, and the results are not uniform. In AMCO Insurance Co. v. Beck, 261 Kan. 266, 929 P.2d 162 (1996), the Kansas Supreme Court looked at the amount of the teenage babysitter’s compensation in relation to her total subsistence, the facts that she did not babysit in her house or advertise, and the fact that she earned below minimum wage. In finding coverage, the court explained:
Supplemental income derived from part-time activities may satisfy the profit motive element. However, in order for the supplemental income from part-time activities to satisfy the profit motive element, the income must be capable of significantly supplementing one’s livelihood or subsistence and contributing to one’s living requirements.
261 Kan. at 278, 929 P.2d at 170. Appellants urge us to adopt the same approach because Christie earned so little from her child-care services. We need not do so in this case. The caregiver’s income from child care, in relation to her entire subsistence, is only one factor among many to be considered. Here, appellants did not prove that the disparity between Christie’s earnings at the hospital and her child-care income was significant.
A case that embodies the majority view is Stanley v. American Fire & Casualty Co., 361 So. 2d 1030 (Ala. 1978), in which the Alabama Supreme Court held that there was no coverage under a business-pursuits exclusion for a little girl’s injuries incurred while being cared for by the insured. In reaching its decision, the court discussed the split of opinion on this issue and explained the difference between occasional babysitting jobs and “day-in, day-out child care for an indefinite period”:
The trial court ruled that in caring for children Mrs. Stanley was engaged in a “business pursuit” within the meaning of the policy exclusion. The judgment, however, lacks any reference to whether the injury arose out of “activities therein which are ordinarily incident to non-business pursuits,” the exception to the exclusion. Our inquiry is directed to the exception.
The above provision, both exclusion and exception have been the subject of several court decisions in other jurisdictions. The provision does not lend itself to clarity, resulting in a split of opinion over whether it is ambiguous, with the consensus being that it is poorly worded. See Martinelli v. Security Ins. Co. of New Haven, 490 S.W.2d 427 (Mo.App. 1972); Crane v. State Farm and Cas. Co., 5 Cal. 3d 112, 95 Cal. Rptr. 513, 485 P.2d 1129 (1971); McDougall v. Hartford Fire Ins. Co., 94 Idaho 220, 485 P.2d 962 (1971); and Gulf Ins. Co. v. Tilley, 280 F. Supp. 60, 64-65 (N.D. Ind. 1967); Aff'd 393 F.2d 119 (7th Cir. 1968).
The Crane and Tilley cases deal with substantially the same question as we have here and conclude the activity there was within the exception to the exclusion, resulting in coverage.
In Tilley, the exclusionary clause was held inoperative where baby care was furnished for consideration, and the baby sustained burns when she overturned a coffee percolator. The district trial court assumed that the child care was a business pursuit, but characterized insured’s coffee brewing for herself and a guest as an activity not connected with baby care, thus ordinarily incident to non-business pursuits. This analysis is questionable. The baby was burned because of the condition on the premises, and the baby’s own activity. The business of child care contemplates the exercising of due care to safeguard a child of tender years from household conditions and activities; and, any activity of the insured in this regard from which injury results cannot logically be called an activity ordinarily incidental to a non-business pursuit. In other words, the activity referred to is a failure to supervise rather than making coffee for a third party. Undertaking the business relation of child care for compensation is certainly not ordinarily incident to the conduct of a household.
In Crane the Supreme Court of California reasoned that “indeed, it is difficult to conceive of an activity more ordinarily incident to a noncommercial pursuit than home care of children.” We agree with the general ascertain [sic], but disagree with their conclusion that child care for pay is ordinarily a non-business pursuit. It should be remembered that we are not here dealing with a temporary or casual keeping of children, but rather with a more permanent arrangement for an agreed upon compensation. The Supreme Court of California in Crane reversed the Court of Appeals. The Court of Appeals’ decision is styled the same and appears in 14 Cal. App. 3d 727, 92 Cal. Rptr. 621. It is our view that the Court of Appeals’ decision is better reasoned and more properly analyzes the other cases cited than does the opinion of the Supreme Court of California. The facts are strikingly similar to the ones before us. In view of the similarity we will quote liberally from their opinion:
“Babysitting” is an occupation in which the babysitter has the responsibility of keeping her infant charges entertained and protected from harm and even mischief. (Tropical Coach Lines, Inc. v. King (1962 Fla. Sup. Ct.) 147 So. 2d 318, 319.)
The term “babysitting” perhaps is inaptly used to describe the contract for day care for children involved here. In ordinary parlance, the “babysitter” is one employed as a matter of convenience by parents to stay with a child or children, so that they may for a few hours seek their pleasure, or tend to affairs external to the home. This differs from day-in, day-out child care for an indefinite period, as here.
“Business” in its broad sense embraces anything about which a person may be busy, and in its usual sense, signifies an undertaking or calling for gain, profit, advantage or livelihood. While “business pursuit” in some contexts is synonymous with “business,” it more accurately denotes a continued, extended or prolonged course of business or occupation. Child care for compensation as evidenced in this case was much more than a casual accommodation, and was properly found to be a “business pursuit” under the terms of the policy exclusion. (Mansfield v. Hyde (1952) 112 Cal. App. 2d 133, 137-138, 245 P.2d 577; Long v. City of Anaheim (1967) 255 Cal.App.2d 191, 197, 63 Cal. Rptr. 56; cf. Dorrell v. Norida Land & Timber Co. (1933) 53 Idaho 793, 27 P.2d 960, 963, reviewing definitions; Fadden v. Cambridge Mutual Fire Insurance Co. (Sup. Ct. 1966) 51 Misc. 2d 858, 274 N.Y.S.2d 235, 241; Home Insurance Company v. Aurigemma (Sup. Ct. 1965) 45 Misc. 2d 875, 257 N.Y.S.2d 980, 985. These New York trial court cases involve the same exclusionary clause here considered.)
It has been held in a variety of contexts that a single day’s act, or single transaction does not qualify as a business. We need not explore the ramifications of these definitions, in view of the continuity of the services here contracted for and performed, according to the evidence. The present case does not involve casual babysitting, a temporary arrangement for an hour, a day or an evening, for the convenience of parents. It seems clear that while an individual instance might involve a business arrangement, such would lack the continuity of a “business pursuit.” 92 Cal. Rptr. at 622.
We are in accord with the several authorities that the exclusionary provision is poorly worded and could have been written with more specificity. Yet when applied to these facts we do not find it ambiguous.
Two questions become pertinent. First, did the injury arise out of a business pursuit? We hold that it did. Second, did the injury arise out of an activity which is ordinarily incident to a non-business pursuit? The activity referred to is not preparing lunch, which would ordinarily be incident to a non-business pursuit, but rather to the failure to properly supervise a young child. Supervising children on a regular basis for compensation is ordinarily a business pursuit.
We are therefore of the opinion that the business exclusion is applicable and the judgment of the trial court is correct.
361 So. 2d at 1032-33.
Although there have been courts that continue to find coverage in this situation, see Smith v. Allstate Ins., Co., 241 Va. 477, 403 S.E.2d 696 (1991); U. Servs. Auto. Ass’n v. Lucas, 200 Ga. App. 383, 408 S.E.2d 171 (1991), the Stanley rationale has been followed in the majority of subsequent decisions. See Moncivais v. Farm Bureau Mut. Ins. Co., 430 N.W.2d 438 (Iowa 1988). We believe that the rationale expressed in Stanley is the better-reasoned approach. First, did the injury arise out of a business pursuit? We hold that it did. Christie advertised her services for child care in the newspaper. She did not go to the child’s home to care for him in his parents’ absence. Instead, she provided the facility, her own home, for her services as caregiver. She offered child care on a five-day-a-week basis in exchange for $100 per week. Christie was, therefore, involved in a business pursuit. Second, could Christie’s child-care services be considered “newspaper delivery, caddying, lawn care [or] any similar activity minors normally perform...”? We hold that they could not. In our view, the exception to the exclusion for activities that minors normally perform cannot reasonably be construed as including full-time child-care services, for compensation in one’s home, on a regular basis, by an adult caregiver who solicits clients. The trial court, therefore, did not err in awarding summary judgment to appellee.
Affirmed.
Bird and Vaught, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Glen Osborne, appeals from the termination of his parental rights to his two children, T.O. and D.O. Appellant’s sole argument on appeal is that the trial court erred in terminating his “parental rights by default, and then, in the written order of termination, relying on evidence from prior proceedings which were not incorporated into the termination hearing.” We affirm.
This case began on January 3, 2005, when the Department of Human Services (DHS) removed two children from appellant’s home. A seventy-two-hour hold was placed on the children on January 5, 2005. A petition for emergency custody was filed on January 7, 2005, and an emergency order was entered that same day. The affidavit of facts attached to the petition for emergency custody stated that on January 5, 2005, the Child Abuse Hotline received a third report alleging that appellant was not adequately supervising T.O. and D.O. The report listed appellant’s address on Pearl Street in Rogers, Arkansas. The affidavit stated that an investigation revealed that appellant left the children at home with a person named Kelly Hutchinson while he was at work. In appellant’s home, however, the case worker found that there was no running water; that the only source of heat was the gas stove burner, which was turned on high; and that the children were “filthy.”
After DHS initiated the seventy-two-hour hold on the children, the case worker returned to appellant’s home to pick them up. When he arrived, he found that appellant had taken the children to a “friend’s” home. The case worker spoke with appellant at that point, and appellant told him that his home was not suitable for the children and that he had a roommate who was using methamphetamine. The affidavit stated that it was believed, at that point, that appellant was living at the Traveler’s Inn on Highway 71B in Rogers.
On January 26, 2005, a probable cause order was entered finding that there was probable cause to find that there were emergency conditions which necessitated removal of the children and that it was contrary to the welfare of the children to be returned to the home. Furthermore, an adjudication order was entered on March 31, 2005, finding that the children were dependent- neglected and that the allegations in the petition for emergency custody were true and correct. Specifically, as to appellant, the court found that at the time of the children’s removal, appellant had failed to secure and maintain appropriate housing for them. He allowed them to remain in a home that lacked appropriate heat and water and that was environmentally hazardous to their health and safety. He also allowed them to be exposed to his roommate, who he admitted was using methamphetamine. The trial court further found that appellant lacked stable and appropriate housing for himself and the children and, therefore, had an ongoing inability to provide the children with necessary and appropriate shelter. Appellant advised the case worker that on the day the children were removed from his custody, he was living in a hotel in Rogers. Moreover, the court found that the children were in need of the services of DHS and that return to the custody of the parents was contrary to the welfare of the children and continuation of custody with DHS was in the best interest of, and necessary to, the protection of the children’s health and safety.
The first termination-of-parental-rights hearing was scheduled for January 17, 2006. Appellant did not appear at the hearing. His counsel was present and explained to the court that she had not spoken with appellant, but that it was her understanding that he had called DHS the day before to request transportation to the hearing. Without objection from appellant’s counsel, the trial court admitted numerous exhibits into evidence. For reasons unrelated to appellant’s absence, the trial court then continued the termination hearing until February 10, 2006. Appellant also did not appear at the February 10, 2006 termination hearing. The following dialogue took place in regard to appellant’s absence:
Ms. Mullins: Your Honor, as to Glen Osborne, he is not present. At the last hearing, I believe Ms. Hamilton had requested a continuance, he was not here at that hearing. So, at this point, I would move for a Default Judgment in regards to him.
Ms. Hamilton: Your Honor, at the last hearing I was under the impression that he was ill and not able to arrive for Court. He left a message at my office on January 17th while I was here. I tried to call him back, I’ve had no contact with him. I tried calling him this week — the number I have for him says he doesn’t five there anymore. So, Your Honor, I don’t know where he is, or anything.
Ms. Scribner: I would have no objection to a Default Judgment, I think it would be appropriate.
The Court: All right. The Motion for Default Judgment of Termination of Parental Rights of Glen Osborne to [T.O.] and [D. O.] is granted. I find it is in those children’s best interest that his parental rights be terminated. And that that matter, with regard to him, be set for further proceedings before this Court.
After the preceding dialogue, the termination hearing continued with testimony from the family service worker and the mother. After the termination hearing, the trial court terminated appellant’s parental rights to T.O. and D.O. An Order Terminating Parental Rights of appellant to T.O. and D.O. was entered on April 11, 2006. The Order Terminating Parental Rights specifically and thoroughly addressed each element of the statute and the facts supporting each of those elements, as they pertained to appellant.
Our standard of review in termination-of-parental-rights cases 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. Cobbs v. Ark. Dep’t of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004) (quoting Johnson v. Ark. Dep’t of Human Servs., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002)). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Chase v. Ark. Dep’t of Human Servs., 86 Ark. App. 237, 184 S.W.3d 453 (2004) (quoting Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001)). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark. Code Ann. § 9-27-341 (b)(3) (Supp. 2005), the facts warranting termination of parental rights must be proven by clear and convincing evidence. 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). 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 proven 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. Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). 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. See id.
An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B). One such set of circumstances that may support the termination of parental rights is when the “juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) 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).
We first address the portion of appellant’s argument that alleges that the trial court erred in terminating his parental rights “by default.” We recognize that the trial judge used the term “default judgment,” but the judge clearly misspoke given that the court evaluated the evidence and made factual determinations before terminating appellant’s parental rights. See Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987) (holding that when a judgment is based upon evidence presented to the court at a trial, as opposed to being based on the failure of a party to appear or attend, the judgment is not a default judgment, and this rule does not apply). The trial court’s extensive consideration of the evidence was appropriate and necessary given that the nature of the proceedings involved fundamental rights.
Our supreme court has recognized that a parent’s right to the care and control of his or her child is a fundamental liberty and that termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005) (citing Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004); Under v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002); Ark. Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002)). The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Santosky v. Kramer, 455 U.S. 745 (1982). Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. Id. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting State intervention into ongoing family affairs. Id. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Id.
In Thompson v. Arkansas Social Services, 282 Ark. 369, 375-76, 669 S.W.2d 878, 881 (1984) (quoting Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)), the court stated:
The concern of this court for the preservation of these [parental] rights has been expressed over a long period of time .... [W]e recognized the rights of parents of good moral character, however poor and humble they might be, if able to support their child in their own style of life, not, as a cardinal principle of law and nature, to be deprived of parental privileges, except when urgendy necessary to afford the child reasonable protection. Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the court. They have been classified as essential rights, basic civil rights, and personal rights more precious than property rights. They have been said to be fundamental rights .... Certainly there remains no lingering doubt about the fact that the rights of parents to the care, custody and upbringing of their children are the subject of constitutional protection on both due process and equal protection standards.
Our supreme court has recognized the court’s burden in ensuring the protection of a parent’s fundamental rights and has compared termination of parental rights proceedings to criminal proceedings. Both address state action affecting fundamental rights. The court stated in Jones v. Arkansas Department of Human Services, 361 Ark. 164, 205 S.W.3d 778 (2005), that the deprivation of parental rights has been found to be in many ways similar to the deprivation of liberty at stake in criminal cases, as the court had previously compared termination proceedings with criminal proceedings in circumstances involving the right to counsel. Id. (citing Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004) (holding that counsel representing a parent in a termination proceeding is required to file a no-merit brief comparable to that required under Anders v. California, 386 U.S. 738 (1967), where there appears to be no meritorious grounds for appeal); Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000) (holding that although termination cases are civil in nature, the principles that require payment of attorney’s fees for representing an indigent criminal defendant are applicable to termination cases as well)). Moreover, our court has stated that few consequences of judicial action are so grave as the severance of natural family ties. Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006) (citing Santosky, 455 U.S. at 788 (Rehnquist, J., dissenting)). Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members. Id.
Here we find that the trial judge did not truly enter a default judgment against appellant, despite the statement at the beginning of the hearing that he was granting the oral motion for a default judgment against the appellant. In the order terminating parental rights, the trial judge properly addressed each element of the termination-of-parental-rights statute and all of the evidence supporting each element, first as to the mother and then again as it applied to appellant. The court’s obligation was to determine the best interest of the children, regardless of the parent’s participation in the proceeding. While appellant was not present at the termination hearing, in order to meet its burden, the State proceeded by putting on additional testimony and evidence. At the conclusion of the hearing, the trial judge considered all of the evidence and testimony relating to appellant in making his decision to terminate appellant’s parental rights. This approach satisfied both the court’s obligation to determine the best interest of the children and to safeguard any constitutional protections.
The second portion of appellant’s argument is that the trial court erred in relying on evidence from prior proceedings in the court’s written order that were not incorporated into the termination hearing. In Neves da Rocha v. Arkansas Department of Human Services, 93 Ark. App. 386, 219 S.W.3d 660 (2005), this court stated:
The process through which a parent or parents travel when a child is removed from their home consists of a series of hearings-probable cause, adjudication, review, no reunification, disposition, and termination. All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings. “[T]he proceedings and orders pertaining to the termination of parental rights [are] in fact a continuation of the original dependency-neglect case.” Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 361, 990 S.W.2d 509, 514 (1999).
Under this holding, all of the hearings, testimony and evidence from earlier proceedings are incorporated into the hearing on the termination of parental rights. As stated in Neves da Rocha, the hearings build on one another and the findings of previous hearings are elements of subsequent hearings. Therefore, we find that the trial court did not err in relying on testimony and evidence from previous hearings in determining whether appellant’s parental rights should be terminated.
Affirmed.
Glover and Marshall, JJ., agree.
DHS actually took three children from appellant’s home. However, only two of the children, T.O. and D.O., were allegedly appellant’s biological children. The third child removed from appellant’s home belonged to Penny Bowers, also the mother of T. O. and D. O., and Joseph Brown.
We note that footnote 2 from Long v. Arkansas Department of Human Services, 369 Ark. 74, 250 S.W 3d 560 (2007) states:
Notably, the circuit court, in its termination order, did not take judicial notice and incorporate by reference into the record all pleadings and testimony in the case that occurred before the termination-of-parental-rights hearing. The circuit court, however, did take judicial notice of its prior orders issued in this case. Thus, our review of the case preceding the termination hearing is limited to the circuit court’s prior orders.
Even if this statement from the footnote in Long is interpreted to require the trial court to take judicial notice and incorporate by reference all prior proceedings before they can be considered in the termination of parental rights hearing, appellant’s argument is unavailing.At the first scheduled termination of parental rights hearing, before that hearing was continued at appellant’s request, the trial court accepted into evidence without objection numerous documents from the previous proceedings. Those documents support the findings made in the trial court’s written order. | [
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Larry D. Vaught, Judge.
Appellant Jeffrey Ridenhour appeals a judgment entered by the Scott County Circuit Court granting the State’s complaint for forfeiture of Ridenhour’s 2004 Dodge pickup truck. For reversal, Ridenhour argues that the evidence was insufficient to support the trial court’s judgment ordering the forfeiture. We agree and reverse and dismiss.
At the forfeiture hearing, Arkansas State Trooper Shane Meyer testified that he initiated a traffic stop after he observed Ridenhour, driving the truck in question, fail to stop at a stop sign. After Trooper Meyer confirmed that Ridenhour was the owner of the truck and that his license was suspended, he arrested Riden-hour and called a wrecker service to tow the truck. Before the wrecker service arrived, Trooper Meyer searched the truck and discovered a plastic bag of a green leafy substance in a boot behind the driver’s seat. The substance was iater confirmed to be mari juana. On the way to the Scott County Jail, Trooper Meyer noticed that Ridenhour “kept playing with his feet.” He advised Ridenhour that once they arrived at the jail Ridenhour would be searched. Ridenhour then confessed to having marijuana in his right boot. The total amount of marijuana found in the truck and on Ridenhour was 64.5 grams.
Ridenhour testified that he owned the truck and that he bought it with money he received when his father died. He testified that he had been a marijuana smoker for some time. He denied selling marijuana. On the day in question, he testified that he worked on his farm and then went to the cemetery for a couple of hours with his girlfriend to visit the graves of his father and brother. He admitted to smoking marijuana at the cemetery. He testified that he left with his girlfriend to get something to eat, which is when he was pulled over, and that he planned to smoke more marijuana later that night. Ridenhour claimed that some of his girlfriend’s belongings were behind the seat of the truck because she was planning to stay the night with him. At one point he testified that he knew that the marijuana in the boot behind the seat belonged to his girlfriend but did not know she had that much. Later, he testified that he was not aware that his girlfriend had marijuana on her person or within her control. He denied ownership of the boot in the back of the truck, did not know whose boot it was, and did not know how it got there.
The State’s complaint for forfeiture alleged that the truck “was held by [Ridenhour] and was then (1) intended to be furnished in exchange for controlled substances, (2) traceable as proceeds from such a transaction, or (3) used to facilitate a drug related crime.” Based on the evidence, the trial court ordered forfeiture. The findings in the judgment of the trial court mirror the allegations made by the State in its complaint. Ridenhour’s sole point on appeal is that the trial court erred in denying his motion for directed verdict.
The State contends that Ridenhour’s sufficiency-of-the-evidence argument is not preserved for appeal. At the hearing, Ridenhour’s motion for directed verdict was essentially a recitation of the allegations made by the State in its complaint. Riden-hour placed additional emphasis in his directed-verdict motion on the State’s third allegation by arguing that there was insufficient evidence to conclude that the truck was used to facilitate a drug-related crime. On appeal, Ridenhour argues, for the first time, that the trial court’s order of forfeiture was clearly erroneous because the State failed to present any evidence that Ridenhour’s vehicle was used to transport, for the purpose of sale or receipt of property, a controlled substance.
Although Rule 50(a) of the Arkansas Rules of Civil Procedure provides that a party may move for directed verdict in a non-jury case, our supreme court has held that, in a non-jury trial, a party who does not challenge, or does not properly challenge, the sufficiency of the evidence does not waive the right to do so on appeal. $15,956 in United States Currency v. State, 366 Ark. 70, 233 S.W.3d 598 (2006) (citing Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000) (holding that in a non-jury trial, a party who does not challenge the sufficiency of the evidence does not waive the right to do so on appeal)); FirstBank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993) (finding that in a bench trial, it is not necessary to move for a directed verdict in order to appeal on the basis of insufficiency of the evidence); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982) (holding that appellants did not waive the right to question the sufficiency of the evidence despite failing to renew the directed-verdict motion at the close of all the evidence). Because this was a civil non-jury trial, we hold that Ridenhour’s sufficiency argument, although based on grounds not asserted at the hearing below, is nonetheless preserved for review.
We next turn to the issue of whether there was sufficient evidence to support the trial court’s order of forfeiture. Forfeiture is an in rem civil proceeding, independent of any pending criminal charge, to be decided by a preponderance of the evidence. Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995). Because the forfeiture statute is penal in nature, and forfeitures are not favorites of the law, the statute is construed narrowly on appeal. Id. The trial court’s decision granting forfeiture will not be set aside unless it is clearly erroneous. Id. A trial court’s decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed. State v. 26 Gaming Machines, 356 Ark. 47, 145 S.W.3d 368 (2004). `We review the evidence in the light most favorable to the appellee. Id.
The applicable forfeiture statute provides:
(a) The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney and when so ordered by the circuit court in accordance with this section, . . . :
(4) (A) Any conveyance, including an airplane, vehicle, or vessel, that is used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of [any controlled substance], . . .
Ark. Code Ann. § 5-64-505(a)(4)(A).
In support of reversal, Ridenhour cites 1993 Ford Pickup v. State, 88 Ark. App. 172, 196 S.W.3d 493 (2004), where the State was awarded forfeiture of a truck that was found outside a home known to be a methamphetamine laboratory. Inside the truck, police officers found a list of names with varying dollar amounts beside each name. An officer testified that this type of list was consistent with the distribution of drugs. On appeal, this court reversed holding that even if the list was drug paraphernalia, there was no proof that the truck was used to transport drugs for the purpose of sale or receipt. Ridenhour contends that there is less evidence in his case that his truck was being used to transport marijuana for the purpose of sale or receipt than was presented in 1993 Ford Pickup.
We find our decision in Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995) even more instructive. In Burnett, the trial court entered an order of forfeiture finding that defendant’s truck was being used to transport a controlled substance when 0.9 grams of methamphetamine was found in his truck. We reversed, holding that there was no evidence that the truck was being used to transport methamphetamine for the purpose of sale or receipt.
In the case at bar, all of the evidence presented to the trial court established that Ridenhour was in possession of marijuana. However, mere possession of a controlled substance does not satisfy the requirements set forth in the civil forfeiture statute. The statute requires that the State establish by a preponderance of the evidence that Ridenhour’s truck was being used to transport marijuana “for the purpose of sale or receipt.” We find no such evidence. Accordingly, we reverse the judgment of the trial court and dismiss the State’s complaint.
Reversed and dismissed.
Heffley and Miller, JJ., agree.
The forfeiture statute enumerates multiple items, including a vehicle, that are subject to forfeiture. Ark. Code Ann. § 5-64-505 (Repl. 2005). The first two forfeiture allegations made by the State, that the vehicle was intended to be furnished in exchange for controlled substances and the vehicle was traceable as proceeds from such a transaction, are included in the statute. Id. § 5-64-505(a)(6)(A). The third allegation, that the vehicle was “used to facilitate a drug related crime,” is not.
Pursuant to § 5-64-505(a)(4)(A), a vehicle is subject to forfeiture when it is used to transport, for sale or receipt, any controlled substance.
Although the State does not raise this issue, we note that in Burnett we also held that Ark. Code Ann. § 5-64-401 (Repl. 2005), which provides, in part, that the intent to deliver is presumed when a defendant is in possession of a certain amount of a controlled substance, does not apply to civil forfeiture proceedings. | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from a divorce decree. The appellant is a doctor of psychology and the appellee is a psychiatrist. Appellant is eighty-five years of age and appellee is fifty-two. The only issue on appeal is whether the trial court’s award of alimony to appellee was proper in light of appellant’s advanced age. We affirm.
A grant of alimony is an issue within the sound discretion of the chancellor that will not be disturbed on appeal absent an abuse of discretion. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Although many factors are considered in setting the amount of alimony, the primary factors are the need of one spouse and the ability of the other spouse to pay. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). Ordinarily, fault or marital misconduct is not a factor in an award of alimony. Id. However, fault and misconduct will be considered when it meaningfully relates to need or ability to pay. Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987).
Here there was evidence that appellee was employed for several years by a consulting firm in Dallas and delivered much of her considerable earnings to appellant, in amounts up to $12,000 per month, with the express understanding that he would use these funds for marital purposes, such as reduction of debt on the parties’ real property. There was also evidence that, during this time, appellant was planning to divorce appellee and assume an open relationship with one or more young women, to whom he gave substantial gifts of automobiles, clothing from Victoria’s Secret, other gifts paid for with marital assets, and several checks for many thousands of dollars.
An exhibit titled “Cash and ATM Withdrawals by Roscoe Dykman and Checks to Chinese Women” shows scores of checks were regularly written between 1999 and 2002, most of which are in the range of several hundred dollars at weekly or biweekly intervals. Other checks are for exceptional amounts, including an automobile purchased for Chenghua Wang in 1999, a check in the amount of $7000 to Chenghua Wang in 2000, checks to Cheng-hua Wang for $1500 and $1000 in 2001, and a check to Ling Ling Zhang in 2002 in the amount of$ll,000. Appellant denied that his relationship with these women was anything other than platonic and asserted that the checks were merely short-term loans. However, his testimony is belied by the following letter written by appellant in 2001:
Dear Lingling,
This may be the last letter I ever write you, but there are some things I need to say. First, trust is a two-way street, my trust in you and your trust in me. Neither of these conditions were met in our relationship and they could have been had things been taken one step at a time. I needed to get to know you over a period of several months and you needed to get to know me over the same length of time. No one goes out and gets a divorce and marries someone else without knowing them. I thought that as I got to know you better that our relationship would improve in the same way that my relationship with Chenghua improved. But even that did not last. She wanted to have children and I did not.
A few words ab out my wife. I have told you the kind of relation we have. She is just company sometimes and nothing more. I will divorce her once her court case is settled. I will be called as a witness in this settlement, mainly to testify to the fact that her disability has ruined our relationship.... I will continue to see her once in a while until the divorce is finalized (no sex). She believes that I will not leave her even though I have told her I intend to do this. I have spent millions of dollars on her and on property that both of us own jointly. A divorce at this moment, and I have thought about doing it, would result in a huge financial loss. It is important that she gets her practice up and going again before the final papers are filed.
In addition to using marital assets to fund his extramarital affairs rather than pay debt on marital property, appellant forged appellee’s signature to obtain a second mortgage on one of their properties without her knowledge. He also fraudulently forged appellee’s name to tax returns.
The evidence that appellant placed a snake in a box on appellee’s driveway with a note saying “Die Bitch” is evidence of fault that cannot properly be considered in an award of alimony. Likewise, appellant’s moral fault for his extramarital liaisons is not a legitimate consideration in an award of alimony. However, we think that appellant’s diversion of marital funds to these young women, meaningfully relates to appellee’s need for alimony be cause appellee had a right to believe her substantial monetary contributions to the marriage were being employed for marital purposes instead of funding appellant’s courtship of several young women through lavish gifts. As a result of this diversion of marital funds, appellee does not have available the marital assets that she believed were being paid for by her contributions. Instead, at a time when she is attempting to establish a psychiatric practice, appellee faces bankruptcy.
Appellee’s attempt to establish her own psychiatric practice, rather than working as an employee, was engendered by a vocal impairment; appellee sustained an injury in 1999 that caused neurological damage and dysphonia, a disorder causing speech to be interrupted, strained, or garbled. She was subsequently terminated from her employment. Appellee’s injury makes her tire easily when talking, and her speech becomes progressively more difficult to understand as she tires. The trial judge expressly found that appellee’s speech was difficult to understand, limiting her ability to practice psychiatry. Her endurance is limited, and we think her plan to establish her own practice in order to control the amount and type of work that she does in light of her injury is a reasonable one. Appellee testified that she currently has no income but that she anticipates that her psychiatric practice will become self-supporting within a short period of time. Here, appellant’s financial misconduct directly relates to appellee’s need, and we think that it can properly be considered in awarding alimony. Finally, with regard to appellant’s argument that it is unfair to order “an eighty-five year old gentleman” to pay alimony in an amount that would require him to seek further employment, we note that appellant was employed at the time of the hearing and that the $1023 in monthly alimony awarded was well within his ability to pay. Although appellant testified that his job was being terminated and that he would be unable to find another at his advanced age, we think that appellant has demonstrated that he retains a considerable amount of vigor and ability, and the alimony award is subject to revision in the event of changed circumstances.
Affirmed.
Hart and Bird, JJ., agree. | [
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Wendell L. Griffen, Judge.
At a bench trial held May 2, 2006, Debra LaFort was convicted of battery in the second-degree against her mother-in-law, eighty-two-year old Mildred LaFort. As a result, she received a three-year term of probation, was fined $300, and was ordered to participate in anger-management classes, domestic-violence classes, and fifty hours of community service. Appellant challenges the sufficiency of the evidence to support the conviction. We affirm.
Testimony adduced at trial shows that appellant was married to Mildred’s son Robert for about twenty years, but appellant had recently filed for divorce. On November 30, 2005, Mildred was in her bedroom when she saw appellant approach her (Mildred’s) home. She yelled at her husband, Michael, not to let appellant into her home, but Michael invited appellant in anyway. Appellant presented Michael with a letter explaining why she was divorcing Robert. Mildred heard appellant tell Michael that she (appellant) was never going to speak to them again. Mildred entered the living room and told appellant to leave, and she later threatened to call the police if appellant did not leave. At that time, appellant took the phone from the coffee table and refused to give it to Mildred. Appellant then grabbed both ofMildred’s arms, backed her up, and threw her into a lounge chair. Mildred attempted to stand up four or five times, and each time, appellant would push her down by her head. When Michael finished reading the letter, he noticed that appellant was on top of Mildred and grabbed appellant. Because of appellant’s actions, Mildred was unable to write and had bruises on her neck, back, and both arms. However, Mildred was once on Plavix, which caused her to bruise easily. Appellant had previously taken Mildred to the hospital because of bruising.
At the conclusion of the State’s case, appellant moved for directed verdict, challenging the sufficiency of the evidence to support the element of intent and appellant’s knowledge that she knew the victim to be over sixty years of age. The court denied the motion. Appellant, testifying in her own defense, denied bruising Mildred. She noted that she went to Mildred’s home to present the letter explaining the divorce and acknowledged that Mildred did not want her there. According to appellant’s testimony, Mildred was throwing her arms in the air and telling her to get out of the house. Appellant stated that she “gently grabbed her, gently placed [her] arms on [Mildred’s] forearm and sat [Mildred] into her recliner.” Once she sat Mildred down, Mildred began kicking. Appellant testified that she had taken care of Mildred for many years, including taking her to doctor appointments, and that she would have never harmed Mildred. She also noted that she had taken Mildred to the emergency room twice for bruises.
After appellant renewed her motion for directed verdict, which was denied by the court, the court found appellant guilty of battery in the second degree. Appellant later received a three-year term of probation and a $300 fine and was ordered to participate in anger-management classes, domestic-violence classes, and fifty hours of community service.
Appellant challenges the sufficiency of the evidence to support the second-degree battery conviction. Specifically, she challenges three elements of proof on appeal: intent, causing physical injury, and knowledge that the victim was at least sixty-years old.
A motion to dismiss at a bench trial is a challenge to the sufficiency of the evidence. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). We review the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered. Id.
A person commits battery in the second degree if the person intentionally or knowingly, without legal justification, causes physical injury to a person she knows to be sixty years of age or older. Ark. Code Ann. § 5-13-202(a)(4)(C) (Repl. 2006). Battery in the second degree is a class D felony. Ark. Code Ann. § 5 — 13— 202(b).
Appellant argues that the State failed to prove that she acted with the purpose of causing physical injury. As an initial matter, we note that the requisite mental state is not purposefully, which requires proof that the actor has the conscious objective of engaging in conduct of that nature or causing the result, but knowingly, which only requires that appellant be aware that her conduct is certain to cause the result. See Ark. Code Ann. §§ 5-2- 202(1) & (2), 5-13-202(a)(4). Under the statute, the only specific intent required to commit second-degree battery is to cause physical injury. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998); Purifoy v. State, 307 Ark. 482, 882 S.W.2d 374 (1991). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime, and because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon common knowledge and experience to infer it from the circumstances. DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006). Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.
Here, the evidence supports the element of intent. While appellant testified at trial and argues before this court that she did not intend to commit physical injury, the evidence was clear that appellant intended to restrain the victim. Specifically, Mildred testified that appellant grabbed her by both of her arms, threw her into a chair, and pushed her down anytime she tried to stand up.
Next, appellant argues that the State presented insufficient evidence to show that she caused physical injury. She contends that the evidence showed that Mildred received no medical treatment and that Mildred was on medication, which caused her to bruise easily. This argument, however, is not preserved for appellate review. At trial, appellant specifically argued about the elements of intent and knowledge of Mildred’s age. She made no argument regarding the severity of Mildred’s injuries. Accordingly, we decline to address this argument. See Ark. R. Crim. P. 33.1; Brock v. State, 90 Ark. App. 164, 204 S.W.3d 562 (2005).
Finally, appellant argues that the State presented insufficient evidence to show that she knew that Mildred was over the age of sixty. Under the second-degree-battery statute, the State must prove that the defendant had actual knowledge of the victim’s age. Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hubbard v. State, 20 Ark. App. 146, 725 S.W.2d 579 (1987). In Sansevero, our supreme court held that the evidence was insufficient to show that the accused knew the victim’s age when the State argued that he should have been aware that the victim was twelve years of age or younger simply based upon her physical appearance. See also Hubbard, supra (reducing a conviction from second-degree battery to third-degree battery based upon lack of proof regarding the victim’s age); but see Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995) (holding that the jury’s observation of defendant at trial was sufficient circumstantial evidence that he was more than sixteen years old).
Again, the evidence is sufficient. The test is whether from the circumstances in the case at bar, appellant, not some other person or persons, knew that the victim was sixty years of age or older. Sansevero, supra; Hubbard, supra. The evidence here shows that appellant was married to Mildred’s son for twenty years and that appellant took Mildred, who indeed has the appearance of an elderly woman, to the doctor on multiple occasions. While there is insufficient evidence to show that appellant was aware of Mildred’s actual age, a reasonable inference can be made that appellant knew that Mildred was over sixty years of age.
Affirmed.
Gladwin and Robbins, JJ., agree.
Police took pictures of Mildred’s injuries. While the pictures were not included in appellant’s brief, they are part of the record. | [
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Larry D. Vaught, Judge.
This appeal challenges the circuit court’s rulings that defects in process served on appellants Patricia and Steven Trelfa had been waived and that a decree of foreclosure and subsequent sale of the property eliminated the priority of appellant State Street Bank and Trust Company. Both the Trelfas and State Street raise the issues of whether the process served on the Trelfas was defective and whether the Trelfas waived those defects. State Street also argues that it retained its priority status. We affirm.
The facts are largely undisputed. The Trelfas borrowed $497,830 from State Street’s predecessor, secured by a first mortgage on their residence, known as the “Doral Property.” The Doral Property was also pledged, along with other property, to Simmons First Bank of Jonesboro as collateral for another loan. Simmons held a second lien on the Doral Property.
The Trelfas defaulted on their obligations in 2002 and filed for Chapter 7 bankruptcy relief. All of the property was abandoned from the bankruptcy estate, and Simmons began a judicial foreclosure action.
Simmons filed its foreclosure complaint on December 27, 2002. The complaint also sought the appointment of a receiver to collect the rents from the commercial property on which Simmons held a first mortgage. Summonses directed to the Trelfas were issued but not served. On January 10, 2003, Simmons filed an amended complaint in which it added State Street as a defendant and asserted that State Street’s interest was inferior. Summonses were not issued after the amended complaint was filed.
The Trelfas were served with the amended complaint by private process server on January 20, 2003. The process server delivered the original summonses issued and dated December 27, 2002, prior to the date of filing of the amended complaint. These summonses had been altered using “white-out” to reference an “Amended and Substituted Complaint in Foreclosure; Amended Notice & Lis Pendens.” The summonses failed to identify State Street as a party to the amended complaint.
State Street was served and subsequently answered on April 21, 2003. In its answer, State Street asserted that its mortgage was senior. State Street also requested that, if the property was ordered sold, “it should be expressly advertised and sold subject to State Street’s first mortgage. . . .”
The Trelfas never filed an answer or other pleading. However, they agreed, through counsel, to the appointment of a receiver. This agreed order was entered on February 3, 2003, and an amended order was entered on February 18, 2003.
A decree of foreclosure was entered on May 5, 2003. In the decree, the Trelfas were found to be in default. State Street’s first lien and the principal amount of its debt of $460,521.57 were acknowledged, but no judgment was entered in favor of State Street. The decree stated that the proceeds from the sale of the Doral Property “shall be first paid to [State Street], next to [Simmons], ...”
The Doral Property was sold at foreclosure sale to appellee Ashley Green for $150,000. The trial court entered orders approving and confirming the sale and approving the commissioner’s deed to Green. Green subsequently conveyed the property to appellees Verla and Marion Gedes.
Following the sale, State Street filed a motion seeking distribution of the proceeds of the sale to State Street’s counsel. The trial court granted the motion and ordered that the proceeds be disbursed to State Street’s attorney. A partial satisfaction of judgment was filed by State Street’s attorney.
In December 2003, State Street filed a motion requesting an interpretation of the effect of the decree or, alternatively, relief under Ark. R. Civ. P. 60. The motion asserted that the prior foreclosure decree could not, as a matter of law, divest State Street of its first lien. In the alternative, the motion sought unspecified relief under Rule 60. The trial court denied the relief requested by State Street on equitable grounds, finding that it would be inequitable for State Street to conduct the sale and then, later, attempt to set aside its own sale.
On February 23, 2005, the Trelfas filed a motion to set aside the decree, asserting that it was void. Attached to the motion was a proposed answer to Simmons’s foreclosure complaint. The trial court ruled that the initial service of process on the Trelfas would not have been effective but that they had waived the issue by not raising it in their first responsive pleading. At another hearing held on July 1, 2005, the trial court clarified its ruling, stating that it was the process itself that was defective, not the service of that process. The court noted that the summons was dated prior to the filing of the amended complaint to be served with that summons. The trial court also ruled that the Trelfas entered their appearance when they signed the agreed order for the appointment of a receiver on February 3, 2003.
A written order reflecting the trial court’s rulings on the motions was entered on January 3, 2006. After the motions were denied, the trial court reserved four issues for trial. Those issues were resolved by a final order entered on January 26, 2006. State Street filed its notice of appeal on February 24, 2006. The Trelfas filed their notice on February 27, 2006.
State Street raises two points on appeal — that the foreclosure decree is void because the process was void and the Trelfas did not waive that defect, and that its lien still has first priority. The Trelfas’ two arguments are both contained in State Street’s first point.
State Street and the Trelfas argue that there was a complete lack of a valid summons in connection with the service of the amended complaint on the Trelfas. They point to the fact that the summons was dated December 27, 2002, prior to the filing of the amended complaint on January 10, 2003. They also point to the fact that the “Additional Notices” section appears to have been altered, and the term “Amended and Substituted Complaint in foreclosure; Amended Notice & Lis Pendens” typed in. State Street and the Trelfas also argue that the summonses are defective because they did not list State Street as a defendant. We need not reach the issue of whether the summonses were defective because of our conclusion, explained below, that any defects in the process were cured or waived by the appearance of the Trelfas in the action without raising an objection to the process or its service prior to the entry of the foreclosure decree.
Due process can be satisfied if the defendant waives service of the summons. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990). Our courts have long recognized that any action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to an appearance. Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986); Cummings v. Lord’s Art Galleries, 221 Ark. 972, 302 S.W.2d 792 (1957); Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d 637 (1938); Spratley v. La. & Ark. Ry. Co., 11 Ark. 412, 95 S.W. 776 (1906); see also Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 272, 2 S.W.2d 696, 697 (1928), where our supreme court said: “A court acquires jurisdiction . . . when the defendant voluntarily appears in any case and, without objection, proceeds, the court thereby acquires jurisdiction over his person whether any summons was issued or served or not.”
Here, the Trelfas recognized the case as being in court and entered their appearance by agreeing to the entry of an order appointing a receiver. See Morehouse v. Lawson, 90 Ark. App. 379, 206 S.W.3d 295 (2005) (holding that signing settlement agreement and the divorce decree amounted to entry of appearance). Such an agreed order is, in effect, a stipulation and recognizes the case as being in court because it is a step in the process of resolving the case and one of the remedies sought by Simmons.
State Street and the Trelfas next argue that the requirement of Ark. R. Civ. P. 4(i) that service of process be had within 120 days of the filing of the complaint was not met and cannot be waived after the 120-day period. However, the entry of the order appointing the receiver occurred well within the 120-day period provided for service. Therefore, Rule 4(i) has been satisfied.
Any defects in the process, the return thereon, or the service thereof are cured or waived by the appearance of the defendant without raising an objection, and he is precluded from thereafter taking advantage of the defect. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Burrell v. Ark. Dep’t of Human Servs., 41 Ark. App. 140, 850 S.W.2d 8 (1993). Arkansas Rule of Civil Procedure 12(h) and Pender both recognize that the insufficiency of the process or in the service of process may be waived, and we think there is ample evidence to support the trial court’s action in denying the belated motions to set aside the foreclosure decree.
In State Street’s second point, it argues that the foreclosure decree could not, as a matter of law, extinguish its prior mortgage. While State Street is correct that a junior mortgagee has no authority to foreclose a prior mortgage by the mere process of making the prior mortgagee a party defendant, Carnes v. DeWitt Bank & Trust Co., 201 Ark. 1037, 147 S.W.2d 1002 (1941), we believe that State Street’s actions in this case show that it consented to the extinguishment of its lien.
State Street’s attorney prepared all of the documents for the notice and sale of the property, together with the deed and the orders confirming the sale and approving the commissioner’s deed. The foreclosure decree provides that State Street has a valid first lien, is awarded attorney’s fees of $1394, and was entitled to the proceeds of the sale. The decree further contains language that the sale “will constitute a permanent bar to all rights of redemption, dower, curtesy, homestead and all other rights, title, claims and interests of the defendants, and each of them.” (Emphasis added.) Similar language was found to be sufficient to show that the first mortgage holder had consented to the sale in Carnes. Likewise, the commissioner’s deed contained language that the purchaser, Ashley Green, was being conveyed “all the right, title, interest or claim, either in law or equity, of the Defendants, and anyone claiming by, through, or under them, in and to said parcel of land[.]” (Emphasis added.) State Street also conducted the foreclosure sale. The proceeds of the sale were distributed to State Street on its motion. Likewise, the proceeds were also distributed to the first mortgage holder in Carnes. These actions, together with State Street’s attempt to begin its own foreclosure proceeding shortly before the entry of the decree in this case, indicate that it was willing to have the whole title sold under the foreclosure and to have the liens paid out of the proceeds in the order of their priority. In these circumstances, it would be unfair to allow State Street to conduct the foreclosure sale, collect the proceeds from that sale, and still retain its lien and the ability to foreclose on the property.
Affirmed.
Gladwin and Bird, JJ., agree.
The thirtieth day in which to file a notice of appeal fell on Saturday, February 25, 2006. Under Ark. R. Civ. P. 6(a), the period in which to file the notice is extended to the next day the clerk’s office is open. Therefore, the notice was timely.
We note that the Trelfas are inconsistent in their arguments. For example, they argued below that they were not in default because they had made an appearance in the action but were not given three days’ notice of the hearing for a default judgment.
The Trelfas, in both their reply brief and at oral argument, made several arguments • based on Ark. R. Civ.P. 55. However, such arguments were not preserved because they were first made in the reply brief. See Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005). | [
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Brian S. Miller, Judge.
On May 3, 2006, the Arkansas Workers’ Compensation Commission affirmed a decision of the administrative law judge denying appellant Maria Rodriguez’s claim for workers’ compensation benefits. Rodriguez alleges in this appeal that the Commission’s decision is contrary to the facts and evidence and that the decision should be reversed. We affirm the Commission’s decision.
M. McDaniel Company is a temporary staffing agency that is also known as “Temps for Hire.” Stribling Packing is one of the regular clients for Temps for Hire. Rodriguez began working for Temps for Hire in March 2005 and on March 22, 2005, she was placed on temporary assignment at Stribling. Her assignment involved boxing wet wipes. The work area consisted of a two-and-a-half to three-foot area with just enough space for a person to stand. A conveyor belt moved the wipes down the line, and the workers stood on pallets in order to reach the line. As the wipes came down the line, they were placed on a metal table, and Rodriguez would grab the wipes from the table and place them in a box.
While attempting to grab some wipes, Rodriguez slipped and hit her right hip on the line. Rodriguez reported this to her supervisor and was transported to the emergency room at Northwest Medical Center. An x-ray came back normal and she was diagnosed with a contusion to the right hip and a lumbosacral sprain. She was prescribed Robaxin and Vicodin and released to return to work; however, she did not return to work.
On April 11, 2005, Rodriguez followed up her hospital visit with a visit to Dr. Timothy W. Yawn. Dr. Yawn examined her and found no muscle spasms, but he diagnosed Rodriguez with a lumbar strain or sprain and prescribed Anaprox-DS, an anti-inflammatory. Dr. Yawn recommended that she use moist heat on her back and neck, and gave her some exercises and stretches to perform twice a day.
Rodriguez later filed a claim for workers’ compensation benefits alleging that she sustained compensable injuries to her low back, hip, and neck as a result of the March 22, 2005, incident. McDaniel controverted her claim alleging that there were no objective medical findings establishing that Rodriguez sustained a compensable injury.
At the hearing before the ALJ, Rodriguez testified that she slipped and fell as she turned to grab some wipes. She said that she hit her right hip and neck against the line as she fell. She said that, immediately thereafter, she began experiencing pain that radiated from her neck through her right hip and down into her legs. She also said that her right hip and neck were swollen. Rodriguez testified she reported that her neck and hip were hurting. She said that, while waiting in the emergency room, she walked around to ease her pain. She admitted that the hospital released her to return to work but said that she did not return to work the following day because she was unable to get out of bed. She stated that she had pain in her neck, right hip and legs when she saw Dr. Yawn three weeks after the accident. She also stated that she continued to have swelling in her right hip and neck.
Rodriguez said that she tried to return to work following her visit with Dr. Yawn but was told that she could not have her job back. She said that Temps for Hire was unable to contact her following her accident because her daughter’s telephone was disconnected. She also said that she missed her second visit with Dr. Yawn because she was told she was responsible for paying for the visit.
Melinda McDaniel testified that she was the operations manager for Temps for Hire. She said that she had just left the Stribling facility on March 22, when she was notified via telephone that someone had been hurt. She returned to Stribling and upon arrival, she spoke to Rodriguez. She said Rodriguez never indicated that she had fallen to the floor. She also said that when asked what was hurting, Rodriguez pulled up her shirt and pointed at her right hip. She said that when Rodriguez did this, she “did not observe any marking indicating that [Rodriguez] had been struck.” She said that Rodriguez never indicated she was having pain or discomfort in her neck, head, shoulder, or legs.
McDaniel testified that she drove Rodriguez to the emergency room and was present when Rodriguez described her injuries to the emergency room staff. She said that she and Rodriguez sat in the emergency room for five hours and that, during that time, Rodriguez would get up and walk around with no apparent physical distress. McDaniel testified that she was given a copy of Rodriguez’s emergency room report after her examination. She said the report indicated that Rodriguez could return to work the following day. McDaniel testified that Rodriguez said she could not return to work when informed of the information contained in the report.
McDaniel said that she called Rodriguez the following day and was told that Rodriguez was ill and unable to work. She called again the next day and offered Rodriguez a position at a different facility, and Rodriguez’s daughter said that Rodriguez was still ill. McDaniel testified that she continued to call and offer Rodriguez work but each time was given an excuse as to why Rodriguez could not work. She said that eventually Rodriguez and her family stopped taking her calls. She said that they answered her calls only when she blocked her telephone number from being displayed on their caller identification. McDaniel testified that a month after Rodriguez’s last doctor’s visit, Rodriguez called in the middle of the afternoon inquiring about the availability of work. Rodriguez was told to call back the following morning between 6 a.m. and 7 a.m., pursuant to company procedure, which was explained to Rodriguez during orientation.
Dr. Yawn testified that he saw Rodriguez on April 11, 2005. At the time of the visit, he did not have Rodriguez’s emergency room records but he had a note from his secretary indicating that Rodriguez was seen in the emergency room. The note briefly explained what the emergency room had found. Dr. Yawn stated that his opinions were based upon his own evaluation of Rodriguez.
Dr. Yawn testified that, in the history he received from Rodriguez, she indicated that she had slipped and hit the side of the line where she was working and then fell on a pallet, striking her lower back or right hip. He said that Rodriguez stated that she began experiencing neck pain the day after her accident. He said that, during her visit, Rodriguez complained of low back pain, some pain in her neck, and pain in her right hip. He also said she indicated that she had pain radiating down into her right leg. Dr. Yawn stated that, during his examination, he checked Rodriguez’s vital signs, examined her neck, abdomen, back, and extremities, and conducted a neurological examination.
During his examination, Dr. Yawn noted some mild tenderness in the back part of Rodriguez’s neck, which was based upon Rodriguez’s responses. Dr. Yawn testified that he did not observe any muscle spasms during his examination of Rodriguez. He explained that:
I noted during the exam, that she had some mild tenderness of the posterior, which is the back part of the neck, on her neck muscles. I reached that opinion based upon her responses. It’s more of an objective tenderness versus pain. Pain is more subjective whereas tenderness is an objective type finding. It may be from grimacing, but there is obviously some subjective input also when we are evaluating for tenderness where a patient is, it is what we call guarding, someone is guarding or pulling away or grimacing there. They are [a] patient’s responses to what I am doing. There is a difference [in] finding of tenderness than actually observing a physical abnormality, in the form of a muscle spasm that I am able to see.
Dr. Yawn further testified that he gave Rodriguez a range-of-motion examination and that the range-of-motion exam was active because the patient controlled it. He said that when he had Rodriguez bend over and touch the floor with her fingers, she could flex only a few inches at the waist. He said that he then had her lean backwards and that she exhibited minimal extension due to pain. He also said that there were no abnormalities in the range-of-motion of her neck. Dr. Yawn testified that, during her straight-leg-raise exam, Rodriguez could only lift her feet a few inches from the horizontal position. He said that she complained of pain on both sides and that her straight-leg raise exam was positive based on her subjective complaints of pain. Dr. Yawn said that the level of symptoms described to him by Rodriguez was out of proportion to his findings. As an example, he explained that during a typical straight-leg-raise exam, he would not expect to see pain elicited with bringing the foot only a few inches from the table.
Dr. Yawn testified that Rodriguez’s neurological examination was within the normal limits. He did not remember visually examining her right hip but stated that his diagnosis of a contusion did not necessarily mean that he had viewed a disturbance in the skin and tissue. Dr. Yawn testified that he had reviewed the first five pages of the emergency room notes. He said that there were no indications that the doctors or nurses observed any muscle spasms. During his testimony, he stated:
The fact that the physician prescribed Robaxin in this case does not mean that [the] physician personally observed muscle spasms. It is just part of normal and usual medical protocol when you have a particular type of subjective complaints. Robaxin is typically a muscle relaxer; someone might be using it for some other reason I am not aware of, but it is by far a muscle relaxer. It can provide a benefit as a pain reliever. It is primarily a muscle relaxer, but it has an ancillary property that helps with pain as well. When a physician prescribes a muscle relaxer in the absence of the physician having personally observed or having reported a muscle spasm or having heard from a nurse she or he observed muscle spasms, it is a prophylactic measure and . . . used as needed.
He said that the x-ray taken at the hospital was normal but that the portion of the hospital record entitled “clinical impression,” said that she had a “hip contusion on the right.” He explained that such a notation referred to tenderness and not to visible darkening or bruising. He stated that:
What we can gather from the emergency room doctor’s report is . . . there was tenderness on the right hip but not necessarily discoloration according to the physical exam. If there had been discoloration I would expect it to say on the physical exam portion “Bruising” or some note in that area. Particularly in the portion of the physical exam, [it] says “Hip tenderness” and then there was a space beside that. Typically we would say there was swelling or discoloration, contusion, or something along those lines to indicate there was more than that.
The ALJ found that Rodriguez’s injuries were not compensable because she failed to present objective findings establishing that she sustained compensable injuries. The Commission affirmed and adopted the ALJ’s decision. Rodriguez brings this appeal from that decision.
In workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm the decision if it is supported by substantial evidence. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). 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. Crawford v. Single Source Transp., 87 Ark. App. 216, 189 S.W.3d 507 (2004). When the Commission affirms and adopts the ALJ’s opinion as the decision of the Commission, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). Therefore, in reviewing the case, we consider both the ALJ’s decision and the Commission’s majority opinion. Id.
Rodriguez argues that the Commission erred in finding that she failed to set forth objective findings supporting compensable injuries to her neck and hip. Rodriguez, as the claimant, had the burden of proving by a preponderance of the evidence that she sustained compensable injuries. See Crawford, supra. A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2005); see also Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002). Objective findings are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2005); see also Watson, supra.
Rodriguez argues that she set forth two objective findings supporting her claim of a compensable injury. First is the evidence that she was prescribed Robaxin, which is a medication used to treat muscle spasms, and second is the emergency room report noting a contusion to her hip. In support of her argument she relies on Fred’s Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005). In Fred’s, our supreme court held that although the physician failed to state the specific purpose for which the medication was prescribed, a reasonable inference was that the medication was prescribed to treat the claimant’s present injury.
As in Fred’s, there is nothing in the medical records indicating why Rodriguez was prescribed the medication at issue. This case is distinguishable from Fred’s, however, because there was medical testimony in this case indicating that Robaxin could be prescribed for prophylactic purposes. Dr. Yawn testified that Robaxin was a general muscle relaxer and that nothing in the emergency room records indicated that Rodriguez was experiencing muscle spasms. He testified that when Robaxin is prescribed in the absence of muscle spasms, it is a prophylactic measure.
As to Rodriguez’s second issue, that there is an emergency room report noting a contusion to her hip, Dr. Yawn testified that the notation in the record most likely referred to tenderness and not to visible darkening or bruising. Dr. Yawn testified further that Rodriguez’s neurological examination was within the normal limits. It is the Commission’s function to determine witness credibility and the weight to be afforded to any testimony. DeQueen Sand & Gravel v. Cox, 95 Ark. App. 234, 236 S.W.3d 5 (2006). The Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Allen Canning Co., supra. The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. Id. Here, the Commission chose to believe the testimony of Dr. Yawn. In light of Dr. Yawn’s testimony, we must conclude that reasonable minds could have reached the same conclusion as the Commission. Therefore, we affirm.
Affirmed.
Vaught and Heffley, JJ., agree. | [
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John Mauzy Pittman, Judge.
The parties in this child-custody case entered into an agreement, approved by the court, providing for joint custody of the parties’ two-year-old child with physical custody alternating on a week-to-week basis. Within two months’ time, the agreement had become unworkable, and appel-lee filed a petition to change custody. After a hearing, the chancellor found that a material change in circumstances had occurred and that it was in the child’s best interest to vest full custody in the appellee. Appellant was granted liberal visitation comprising one-half of the child’s free time until the child enters kindergarten, and was ordered to pay child support in the amount of $95.00 per week. From that decision, comes this appeal.
For reversal, appellant contends that the chancellor erred in finding a material change in circumstances, in finding that it would be in the child’s best interest to grant custody to appellee rather than to appellant, and in ordering appellant to pay child support of $95.00 per week in the absence of any proof of appellant’s income.
Appellant’s first two arguments are directed to the sufficiency of the evidence to support the chancellor’s findings. In chancery cases, we review the evidence de novo, but we do not reverse the findings of the chancellor unless it is shown that they are clearly contrary to the preponderance of the evidence. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In child-custody cases, we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child’s best interest. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995). In custody cases, the primary consideration is the welfare and best interest of the children involved; other considerations are secondary. Id.
We first address appellant’s contention that the chancellor erred in finding a material change in circumstances. A material change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody, and the party seeking modification has the burden of showing such a change in circumstances. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). Here, the parties testified that they had never adhered to the joint-custody schedule provided for in their agreement and the decree, but had instead alternated custody several times each week. Most significantly, the record shows that the parties could not or would not cooperate regarding the child’s health care. Appellant made an appointment for the child to be seen by an allergist; appellee canceled the appointment without notice to appellant. Without consulting appellant, appellee then made a new appointment with a different physician whose competence was questioned by appellant. This failure to cooperate regarding health care was also evident with regard to the child’s inoculations; it appears that appellee failed to provide requested inoculation records to appellant, who ignored appellee’s oral assurances that the child’s inoculations were up to date. Appellant telephoned appellee from the health clinic and informed her that he was there to have the child inoculated; appellee told appellant that this was unnecessary and began cursing. Appellant nevertheless proceeded to have unnecessary inoculations administered to the child. Further unnecessary inoculations would have been administered had appellee not appeared at the clinic with the inoculation records in time to prevent them.
Joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is improper where cooperation between the parents is lacking. 24 Am. Jur. 2d Divorce and Separation § 990 (1983). We have reversed awards of joint custody where it was clear that the parties were not working in concert to raise the child. Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984). In the case at bar it is clear that the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the child, and we hold that the chancellor did not err in finding that this constituted a material change in circumstances affecting the child’s best interest sufficient to warrant modification of the joint-custody decree. See 2 Homer H. Clark, Jr., The Law of Domestic Relations § 20.9, at 554 (2d ed. 1987).
Next, appellant contends that the chancellor erred in awarding custody of the parties’ child to the appellee because the evidence established that appellant had been the child’s primary caretaker since the parties’ divorce. We do not agree. First, we note that less than two months elapsed from the time of the parties’ divorce to the filing of the petition to change custody. Second, although the fact that a parent had been the child’s primary caretaker is relevant and worthy of consideration in determining which parent should be granted custody, see Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995), it is not in and of itself determinative: the unyielding consideration in determining child custody is the welfare and best interest of the child. Brown v. Cleveland, 328 Ark. 73, 940 S.W.2d 876 (1997). Here, there was evidence that appellee was better positioned to be the child’s primary caretaker at present than was the appellant: appellee testified that she had quit her job so as to be able to care for the child during the day, while appellant worked daytime hours and was not able to do so.
Personal observation is of great value to a court that is called upon to choose between mother and father in a custody case. See Holt v. Taylor, 242 Ark. 292, 413 S.W.2d 52 (1967). Chancellors in such cases must utilize, to the fullest extent, all their powers of perception in evaluating the witnesses, their testimony, and the best interests of the children. We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as those cases involving minor children. Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989). Giving proper deference to the chancellor’s superior opportunity to observe the parties, we cannot say that he erred in awarding custody to the appellee.
Finally, appellant contends that the chancellor erred in ordering him to pay child support in the amount of $95.00 per week. We agree. Although the amount of child support a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion, reference to the family-support chart is mandatory. Anderson v. Anderson, 60 Ark. 221, 963 S.W.2d 604 (1998). The chart itself establishes a rebuttable presumption of the appropriate amount of child support to be paid by the noncustodial parent, which can only be disregarded if the chancery court makes express findings of fact stating why the amount of child support set forth in the support chart is unjust or inappropriate. Id. Here, there was no evidence of appellant’s income. The absence of evidence of income makes it impossible to reference the family-support chart. Because a determination of appellant’s income and reference to the support chart are necessary before we can determine whether the presumptive amount is, as appellant argues, unjust or inappropriate, we reverse the chancellor’s order of child support and remand for further proceedings to determine the propriety of (and, if necessary, amount of) child support.
Affirmed in part; reversed and remanded in part.
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John Mauzy Pittman, Judge.
Randy Hyatt appeals from his conviction at a jury trial of rape, for which he was sentenced to thirty years in the Arkansas Department of Correction. He contends that the trial court erred in allowing the prosecuting witness to testify concerning other instances of sexual abuse by appellant. We affirm.
Appellant was charged with having raped his thirteen-year-old daughter on January 24, 1997. At trial, the victim testified that she began living with her mother and appellant approximately three years prior to the trial, or two and one-half years prior to the offense for which appellant was being tried. Before that, the victim had lived with her grandmother. At some point, the family moved to Oregon for several months and then moved back to Arkansas. The victim testified that, on January 24, she and her family went to Wal-Mart. When they returned home, appellant told her that he needed to talk to her in her bedroom about her grades. Once in the bedroom, appellant told her to take off all of her clothes, which she did. He then removed his clothes and penetrated her vagina with his finger and his penis. Afterwards, appellant told her to get dressed, which she did. Over appellant’s objection, the victim was also allowed to testify that, while they lived in Oregon, appellant began touching her private areas under her clothing. She stated that this would occur about once a week. She further testified that, after returning to Arkansas, appellant continued to touch her in the same places. Eventually, appellant began to remove the victim’s clothes and have intercourse with her. According to the victim, this activity continued periodically until the episode for which appellant was prosecuted.
On appeal, appellant contends that the trial court erred in permitting the victim to testify about any acts of sexual misconduct by appellant other than that which occurred on January 24. He argues that the evidence was unrelated to the charged offense in time, location, and nature, and was introduced only to show his poor character in violation of Ark. R. Evid. 404. We find no error.
Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. 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.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 959 S.W.2d 39 (1998). Were this not a case involving the sexual abuse of a child, the evidence of appellant’s other bad acts might well be inadmissible character evidence under Rule 404. See Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). However, our courts have long recognized a “pedophile exception,” which allows proof of “similar acts with the same child or other children in the same household when it is helpful in showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” Id. at 197, 884 S.W.2d at 950 (citations omitted). Such evidence not only helps to prove the depraved sexual instinct of the accused, Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998), but is also admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim, Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) (citing Williams v. State, 103 Ark. 70, 146 S.W.2d 471 (1912)).
The fact that some of appellant’s prior misconduct occurred in Oregon up to as much as two and one-half years before the charged offense does not necessarily render the evidence inadmissible. See Greenlee v. State, supra (evidence of multiple prior sexual offenses that occurred in Oklahoma admitted in Arkansas rape case); Munson v. State, supra (two and one-half years between prior conduct and charged offense); Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996) (eleven years between prior conviction and charged offense). Nor was the evidence in this case inadmissible simply because some of the prior conduct did not rise to the level of rape. See Greenlee v. State, supra (evidence of indecent exposure and lewd molestation offenses admitted in rape prosecution). In line with our supreme court’s statement in Free v. State, supra, of the purpose behind admitting this type of evidence, one text writer explains the point as follows:
The “entire picture” theory is important in sex offense litigation. The theory is sometimes used to admit uncharged aspects of the sexual relationship between the victim and the perpetrator. Such evidence is particularly relevant when the perpetrator engages in a course of progressively more intrusive sexual conduct with the child. The perpetrator may begin with seductive talk or brief touching, and progress over weeks or months to sexual intercourse, fellatio, and similar invasive acts. When the defendant is charged with a single incident of invasive sexual contact, the jury sometimes needs information about the entire course of the relationship to fairly evaluate the victim’s credibility.
2 J. Meyers, Evidence in Child Abuse and Neglect Cases, § 8.25, pp. 483-84 (3d ed. 1997) (footnotes omitted). From our review of the record in this case, we cannot conclude that the trial court abused its discretion in admitting the evidence of appellant’s prior sexual misconduct toward the victim.
Affirmed.
Rogers and Griffen, JJ., agree. | [
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Judith Rogers, Judge.
Bricks of marijuana weighing some six-odd pounds were discovered in appellant Roger Kimery’s vehicle. Appellant filed a pretrial motion to suppress this evidence, in which he argued that the stop of his vehicle for a traffic violation was a pretext for conducting a search for drugs. The trial court rejected that argument finding that a search of the vehicle was permitted on grounds of reasonable or probable cause under Ark. R. Crim. P. 14.1. Alternatively, the trial court also upheld the seizure under the plain-view doctrine.
Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, appellant entered a conditional plea of guilt to a charge of possession of a controlled substance (marijuana) with intent to deliver, reserving the right to appeal the trial court’s denial of his motion to suppress. For reversal, appellant challenges both findings made by the trial court. We find no error and affirm.
The record discloses that on July 21, 1996, Investigator Bryan Malone of the Poinsett County Sheriff s Office received a phone call from a confidential informant who said that appellant had just been to the informant’s house and had tried to sell him a quantity of marijuana. Prior to receiving this call, Officer Malone had already obtained a warrant authorizing a search of the appellant’s home based on this same informant’s purchase of marijuana at the home the previous day. Officer Malone set out to investigate, and Officer Danny Smith accompanied him. They proceeded to the area of the informant’s home and met appellant’s vehicle travelling down the highway. Officer Malone testified that, although they were in an unmarked patrol car, it was obvious that it was a police car, given the color, the make of the vehicle, and the number (five or six) of antennae on the back of it. He said that, as the vehicles came within fifty yards of one another, appellant “swept” into the driveway of a farmer’s shop. Officer Malone activated the blue lights shortly after appellant turned into the driveway. Malone testified that he took this action because appellant had made an illegal turn in that no signal had been used when the turn was made. Admitting that he was also prompted by the information he had just received from the informant, as well as his knowledge of the activities that took place the day before, Malone testified that he would stop any vehicle for making an improper turn, provided he had witnessed the violation occur. The officers turned around and pulled into the driveway as appellant was emerging from his vehicle. In the presence of police officers arriving in a vehicle with flashing blue lights, appellant walked hastily into the farm shop. The officers parked behind appellant’s vehicle.
As to the discovery of the contraband, Officer Malone testified that appellant came back outside and that, while he was standing with appellant beside the police car, Officer Smith exclaimed that he had found drugs in appellant’s vehicle. Malone was situated a short distance away from appellant’s vehicle, and within a few moments he walked over to see what had been found. He saw a large quantity of marijuana in the floorboard of the vehicle. According to Malone, the marijuana was in the form of bricks wrapped in Saran-Wrap material, and there were five to seven such bricks stacked three-quarters of the way up inside a brown paper bag. The court questioned the officer on two occasions:
The Court: Could you see inside the bag from the outside of the car:
Witness: Yes, sir. I’m six foot three and standing up from the vehicle, and when the bag’s direcdy below you, it’s pretty easy to see what’s inside the vehicle.
The Court: But I mean, they hadn’t folded the bag over —■
Witness: No, sir.
The Court: — or tried to hide it —
Witness: No, sir.
The Court: — it was in the floorboard of the car?
Witness: Yes, sir.
The Court: That’s kind of dumb.
Witness: Yes, sir.
The Court: Was it a regular size grocery sack? A brown paper poke?
Witness: Yes, sir.
The Court: ' And the top was open, and you could just see down into it?
Witness: Yes, sir.
The Court: Passenger side floorboard?
Witness: Yes, sir.
Officer Malone also testified that the paper bag had not been folded at all, that it was not even crinkled, and that it was almost like new.
Ricky Scott was at the farm shop that day and testified on appellant’s behalf. He said that appellant had been there a few minutes before the officers stopped and that the officers had driven by the shop twice before stopping. He did not recall seeing the marijuana, saying that he was minding his own business.
Charles Strange was also at the shop, working on a lawn mower. He testified that, while standing outside and talking with appellant, the officers pulled into the driveway but then drove back out onto the road, and then turned around and came back to the shop. Looking inside appellant’s vehicle from the driver’s side, he saw a black plastic garbage bag. He said that he could not see what was inside the bag.
Appellant testified that the marijuana bricks were inside a plastic garbage bag that was tied at the top and sitting on the passenger-side floorboard. He said that the contents of the bag could not be seen.
While this appeal was pending and during the course of our deliberations, the supreme court decided the case of State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998), an appeal brought by the State upon the trial court’s grant of a motion to suppress evidence. There, Hezile Earl had been stopped by a police officer who had observed Earl’s vehicle run a stop sign. Reportedly, Earl was uncooperative and belligerent, so the officer conducted a search of the passenger compartment of the vehicle for weapons and found a prescription bottle containing a suspicious substance that proved to be crack cocaine. Earl was then arrested.
On these facts, the supreme court reversed the order of suppression. After first observing that generally the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred, the court based its reversal on the provisions of Rules 4.1 and 5.5 of the Arkansas Rules of Criminal Procedure. Under Rule 4.1, an officer has the authority to arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed any violation of the law in the officer’s presence. Rule 5.5 states that “[t]he issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investi gative procedure incident to an arrest.” Construing these rules together, the court held that where an officer has probable cause to arrest pursuant to Rule 4.1, he may validly conduct a search incident to arrest of either the person or the areas within the person’s immediate control under Rule 5.5. Since the officer had the power to arrest Earl for a traffic violation, the court reasoned that the officer could lawfully conduct the search, without need of further justification.
When we examine the facts of this case, we believe that the court’s holding in State v. Earl is dispositive. Officer Malone initiated the stop because appellant turned off the road without signalling. Since the officer had the authority to arrest appellant for this traffic violation, he also had the authority to conduct a search as incident to an arrest. As a search incident to arrest, the police may search the passenger compartment of the automobile, and containers found within the passenger compartment may be searched whether they are opened or closed. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995) (citing New York v. Belton, 453 U.S. 454 (1981)).
Although appellant has argued that the stop was invalid because no actual traffic violation occurred, that is not the issue. The question of whether an officer has probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis for the stop. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). All that is required is that the officer had probable cause to believe that a traffic violation had occurred. Id. Whether the defendant is actually guilty of the traffic violation is for a jury or court, and not an officer on the scene. Id. Arkansas Code Annotated § 27-51-403(a) (Repl. 1994) provides that “[n]o person shall turn a vehicle from a direct course upon a highway unless and until the movement can be made with reasonable safety and then only . . . after giving an appropriate signal in the manner provided in subsection (b) in the event any other vehicle may be affected by the movement.” Subsection (b) requires that a signal of intention to turn right or left be given continuously during not less than one hundred feet traveled by the vehicle before turning. The record reflects that appellant made an abrupt turn without signalling to nearby, oncoming traffic. We believe there was sufficient cause for the officer to believe that a violation of the statute had occurred.
We also reject appellant’s argument that the stop was a pretext for a drug search. In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), the supreme court said that an ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. The court quoted an example from Professor LaFave to illustrate this point: “[I]f the police stop X’s car for minor offense A, and they ‘subjectively hoped to discover contraband during the stop’ so as to establish serious offense B, the stop is nonetheless lawful if ‘a reasonable officer would have made the stop in the absence of the invalid purpose.’” 1 Wayne R. LaFave, Search and Seizure § 1.4 at 22 (Supp. 1994). We also quoted this section of the professor’s treatise in Miller v. State, 44 Ark. App. 112, 868 S.W.2d 510 (1993), a case in which a narcotics officer who discovered contraband during a traffic stop testified that he had stopped the appellant’s vehicle in hopes that he would find drugs. In affirming, we wrote that police searches are to be tested under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. We also observed that:
The test is whether a “reasonable officer” would have made the traffic stop absent his ulterior motive. The Constitution does not prohibit officers assigned to work on particular types of offenses to refrain from arresting those who commit offenses outside the officers’ area of specialty.
Id. at 116, 868 S.W.2d at 512. Applying the standard of objective reasonableness in the case at bar, we cannot conclude that the stop was invalid as a matter of pretext. See also, e.g., Whren v. United States, 517 U.S. 806 (1996).
Although Rules 4.1 and 5.5 were not urged as a basis to sustain the officer’s actions at the trial level, we recognize that we can affirm a trial court if it reached the right result, but for a different reason. Stewart v. State, 59 Ark. App. 77, 953 S.W.2d 599 (1998). While we find no merit to appellant’s contentions concerning Rule 14.1 and the plain-view exception, our affirmance based on State v. Earl, supra, makes it unnecessary to further delve into those issues.
Affirmed.
Crabtree, Meads, Jennings, Stroud, and Neal, JJ., agree.
The record reflects that the marijuana was kept in a box. In a footnote in his brief, appellant asserts that the marijuana was inside a black plastic bag when the exhibit was opened at the hearing. However, when we inspected the exhibit, there was no black plastic bag in evidence. | [
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Terry Crabtree, Judge.
This case concerns a contract for the sale of 858 cases of frozen chicken. The seller, appellant Grand State Marketing, filed suit to recover $11,668.80 due on the contract. The buyer, appellee Eastern Poultry Distributors, Inc., answered that it had revoked acceptance of appellant’s product because some of the cases contained a cut of chicken inferior to that which was specified in the contract. The trial judge agreed that the goods were nonconforming and entered an order allowing appellee to deduct lost profits, transportation and storage charges, and attorney’s fees from the amount owed on the contract. We affirm.
On February 26, 1996, appellee purchased 34,320 pounds of frozen chicken from appellant. The chicken was packaged in 858 forty-pound cartons and priced at $.34 per pound. According to two of appellee’s traders, Joe Reed and Joe Rogers, they were assured by appellant that the poultry was split fryer breasts and no more than six to eight months old. After the sale, appellee in turn sold the chicken to Western Box Beef in Portland, Oregon, for $.64 per pound. Approximately two weeks later, Western Box Beef rejected 521 of the 858 cases (20,840 of 34,320 pounds). Appellee stopped payment on its check to appellant and notified appellant that the rejected cases contained pieces rather than split breasts and were dated 1994 rather than 1995. When appellant refused to accept a return of the 521 cases, appellee sold them to a buyer in Chicago for $.42 per pound.
On May 13, 1996, appellant sued appellee for the $11,668.80 contract price. Appellee claimed it was entitled to offset its lost profits on the 521 cases, storage charges incurred in Portland, and freight charges incurred in transporting the 521 cases from Portland to Chicago. After a nonjury trial, the judge found that the goods were nonconforming. He allowed appellee to deduct from the contract price $4,584.80 in lost profits; $328 in storage charges; $1,868.70 in freight charges; and, pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994), $678.15 in attorney’s fees.
Appellant’s first argument on appeal is that appellee did not properly revoke acceptance of the goods. This argument is based upon the fact that appellee’s representatives did not look at a sample of the chicken before purchasing it. In support of its argument, appellant relies on the following section of the Uniform Commercial Code, contained in Ark. Code Ann. § 4-2-608(l)(b) (Repl. 1991):
(1) The buyer may revoke bis acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
The above-quoted statute allows a buyer to revoke acceptance of a “lot or commercial unit.” A “commercial unit” is defined in Ark. Code Ann. § 4-2-105(6) (Repl. 1991) as follows:
“Commercial unit” means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole.
The frozen chicken in this case was packaged in forty-pound cartons and was priced at $.34 per pound. Division of the product into cartons did not materially impair “its character or value on the market or in use,” and a carton is similar to a “bale, gross, or carload” as referred to in the statute. Therefore, each carton constituted a commercial unit and appellee could properly accept some cartons and reject or revoke its acceptance of others. See, e.g., Badger Produce Co., Inc. v. Prelude Foods Int'l, Inc., 130 Wis.2d 230, 387 N.W.2d 98 (1986) (in a sale involving 1,000 boxes of seafood, each box was a commercial unit). Additionally, when goods are sold by the pound, or other unit of weight, that unit of weight may be considered a commercial unit. See Figueroa v. Kit-San Co., 123 Idaho 149, 845 P.2d 567 (1992) (product sold per ton); Askco Eng’g Corp. v. Mobile Chem. Corp., 535 S.W.2d 893 (Tex. Civ. App. 1976) (product sold per pound).
Turning now to the evidence in the case, it is undisputed that, before concluding the sale, Darrell Glen, appellant’s chairman of the board, advised appellee’s representatives that they could view a sample of the chicken. In fact, Glen called the storage facility where the chicken was located and gave the facility authority to release a sample. However, according to Joe Reed, both appellant and appellee wanted to move the chicken quickly, and there was no time to view a sample. Additionally, Reed said, it would have been hard to tell which cartons were conforming and which were not without looking at all 858 of them. Therefore, instead of looking at samples, Reed specifically advised Glen that he would rely on Glen’s assurance that the chicken was 1995 production split fryer breasts. That testimony was confirmed by Joe Rogers.
Section 4-2-608(1)(b) does not always require a buyer to view the product prior to acceptance. It allows revocation if the buyer’s acceptance of goods has been induced by the seller’s assurances. Arkansas case law has recognized a buyer’s right to revoke acceptance under such circumstances. Dopieralla v. Arkansas La. Gas Co., 255 Ark. 150, 499 S.W.2d 610 (1973); Parker v. Johnston, 244 Ark. 355, 426 S.W.2d 155 (1968). Although Glen denies making any assurances with regard to the production date of the chicken, and denies making any quality assurance other than that the chicken was “wholesome,” Reed and Rogers testified unequivocally that Glen assured them the poultry was 1995 production split fryer breasts. We view the evidence and all reasonable inferences therefrom in the light most favorable to the appefiee. Brady v. Bryant, 319 Ark. 712, 894 S.W.2d 144 (1995). Given the testimony of Reed and Rogers regarding their reliance on Glen’s assurances, we find no infirmity in appellee’s revocation of acceptance.
Next, appellant argues that appellee did not provide sufficient proof of the product’s nonconformity. In particular, appellant claims that (1) the record is void of evidence indicating that the 521 rejected cases were anything other than that represented by appellant; (2) that appellee failed to prove its damages; and (3) that appellee did not prove why Western Box Beef rejected the product. Before beginning our analysis of this issue, we note that, when a circuit judge is sitting as fact-finder, we will not reverse his findings unless they are clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Whether goods are nonconforming is a question of fact. O’Neal Ford, Inc. v. Early, 13 Ark. App. 189, 681 S.W.2d 414 (1985). Nonconformity is to be determined within the framework of the facts in each particular case. Frontier Mobile Home Sales, Inc. v. Trigleth, 256 Ark. 101, 505 S.W.2d 516 (1974). The evidence and all reasonable inferences therefrom are viewed in the fight most favorable to the appellee. Brady v. Bryant, supra.
For a buyer to revoke his acceptance of a lot or commercial unit on the basis of nonconformity, the nonconformity must substantially impair the value to the buyer. O’Neal Ford, Inc. v. Early, supra. See also comment 2, Ark. Code Ann. § 4-2-608 (Repl. 1995). Appellee successfully proved, through the testimony of Joe Reed, that the value of the goods in this case was substantially impaired. According to Reed, upon rejection of the 521 cases, Western Box Beef, as justification for its rejection, sent appellee a copy of a label from a nonconforming package. The label read “Frying Chicken Parts Breast Portions With Back Portions” and was dated 1994. Reed testified that 1994 production chicken had less value than 1995 production. He also said that the cut of chicken reflected on the label was a less desirable commodity than split fryer breasts. This was disputed by Darrell Glen. Glen testified that there was no difference between split fryer breasts and the cut of chicken shown on the label. Because the trial judge found that the goods were nonconforming, he obviously believed Reed’s testimony. Decisions regarding the credibility of witnesses are to be made by the trier of fact. Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997). In particular, when a technical term is used, the trier of fact may determine in what sense the term was used. Les-Bil, Inc. v. General Waterworks Corp., 256 Ark. 905, 511 S.W.2d 166 (1974).
Regarding proof of damages, the burden of proof is on the party claiming damages, and such proof must consist of facts, not speculation. Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996). If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover lost profits. Tremco, Inc. v. Valley Aluminum Prod. Corp., 38 Ark. App. 143, 831 S.W.2d 156 (1992). The loss may be determined in any manner which is reasonable under the circumstances. Id. Incidental damages such as transportation and storage charges are also recoverable. See Ark. Code Ann. § 4-2-715 (Repl. 1991). Appellee proved through documentary evidence and testimony that it lost profits when it sold the rejected chicken at a price of $.42 per pound rather $.64 per pound. It also proved the amount of and necessity for the storage and freight charges. We find no failure of proof as to damages.
Finally, we conclude that there was no need to resort to speculation and conjecture to determine why Western Box Beef rejected the product. The company sent appellee a package label as justification for its rejection of the 521 cases. Reed testified that Western Box Beef had not before or since rejected an order from appellee. The package label sent to appellee reflected a product different than what appellee had represented it to be when it sold the chicken to Western Box Beef. Following the rejection, appellee was forced to sell the product at a reduced price.
Based upon the foregoing, we affirm the trial court’s judgment.
Affirmed.
Meads and Roaf, JJ., agree. | [
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OHN E. JENNINGS, Judge.
The appellant, Rufus Antonio Box, was charged by information in circuit court with the offenses of residential burglary, rape, and terroristic threatening in the first degree. He was sixteen years old at the time the offenses were allegedly committed and when the information was filed. This is an interlocutory appeal from an order denying appellant’s motion to transfer these charges to juvenile court.
Appellant urges two points for reversal. He argues: (1) that the trial court erred in denying the motion due to the State’s failure to offer any evidence concerning the seriousness of the offenses with which he was charged; and (2) that the trial court erred by failing to make written findings to support its decision. We find no error and affirm.
The trial court held a hearing on appellant’s motion to transfer. It was brief, consisting primarily of argument of counsel, although the State did introduce into evidence exhibits showing appellant’s past criminal record both in juvenile and circuit court. In its order denying the motion, the court stated its reasons as “the seriousness of the offense, that this offense is a repetitive pattern of violence towards persons, the prior history, mental maturity and character traits” of the appellant.
Appellant first argues that the trial court erred in retaining jurisdiction because the State failed to present any evidence concerning the seriousness of the offenses as required by the decision in Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1997). We find no error.
To determine whether a case should be transferred to juvenile court, the following factors are to be considered:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e) (Repl. 1998). In reviewing a transfer-denial decision, we do not overturn the circuit court unless the decision is clearly erroneous. Brown v. State, 330 Ark. 603, 954 S.W.2d 273 (1997).
In Thompson v. State, supra, the supreme court held that the State could no longer rely upon the allegations contained in the information alone to establish the seriousness of the offenses. The court said that a “meaningful hearing” was required in which some evidence was to be presented to substantiate the serious and violent nature of the charges. Even so, a circuit court does not have to give equal weight to each of the three statutory factors; nor does evidence have to be presented regarding each factor. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998).
Here, in addition to the seriousness and violent nature of the charges, the trial court also found the current charges to be part of a repetitive pattern of adjudicated offenses of increasing violence towards persons. The record shows that appellant was adjudicated a delinquent juvenile in 1995. A docket entry from that case dated November 6, 1997, reflects that appellant had “been in and out of detention in Hot Springs.” Another entry, dated August 17, 1998, states that he was “in adult criminal detention in Hot Springs.” In February of 1999, just four months prior to the filing of the present charges, appellant was found guilty as an adult on multiple charges of second-degree battery, arson, criminal mischief in the second degree, and aggravated assault on an employee of a correctional facility. Thus, there is evidence in the record to show that the charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation had proved unsuccessful, and that the pattern of offenses had become increasingly more serious. We cannot say that the trial court’s decision is clearly erroneous. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Brown v. State, supra; Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).
Appellant’s next argument is based on the provision in Act 1192 of 1999, which amended Ark. Code Ann. § 9-27-318(g) (Supp. 1999) to require that the court “shall make written findings” in making the decision either to retain or transfer the case to juvenile court. Appellant argues that the amendment was in effect at the time of the hearing and that the trial court erred by failing to make written findings. Appellant, however, did not raise this issue in the trial court.
In our view, this provision can be likened to Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997), which requires that a court “shall furnish a written statement of the evidence relied upon and the reasons for revoking suspension or probation.” It has been held that this right, like any other procedural right, can be waived by the failure to object. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981); Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark. App. 1980). We see no reason to apply a different rule here. A timely request or objection would have enabled the trial court to rule on the issue of whether the amendment applied and to correct whatever deficiency there may have been in the order. See Hawkins v. State, supra. Additionally, in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996), the appellant argued that the trial court was required to make written findings of fact to support its decision to deny a transfer to juvenile court as a matter of due process, based on the decision in Kent v. United States, 383 U.S. 541 (1966). The supreme court declined to address the issue because there had been no objection made below, noting that even constitutional issues will not be heard for the first time on appeal. Thus, we conclude that appellant’s failure to object precludes consideration of this point on appeal.
Affirmed.
Robbins, C.J., Hart, Crabtree, and Meads, JJ., agree.
Griffen, J., dissents. | [
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JOSEPHINE Linker Hart, Judge.
Appellant challenges the trial court’s granting of summary judgment in favor of appellee, Columbia Mutual Insurance Company. Appellant’s complaint sought to obtain $25,000, the minimum statutory amount for uninsured motorist bodily injury coverage, under a policy issued by appellee to Allen Baker’s employer, Kenneth Madlock, doing business as Madlock Auto Glass & Body. Appellant argues that appellee failed to obtain a written rejection of the coverage and that a written rejection is required by state law. Further, appellant argues that even if a written rejection of uninsured motorist bodily injury coverage is not required under state law, there still remained a material issue of fact regarding whether Madlock rejected such insurance coverage. We affirm.
This case was previously before this court in Columbia Mut. Ins. Co. v. Estate of Baker, 65 Ark. App. 22, 984 S.W.2d 829 (1999). There, we discussed the relevant facts underlying the case, and we need not repeat them here. In the earlier decision, we remanded this case to the circuit court, noting that a fact question remained regarding whether Madlock rejected the uninsured motorist bodily injury coverage.
On appeal, appellant argues that written rejection of uninsured motorist coverage is required under state law and that appellee failed to present written evidence of Madlock’s rejection of that coverage. The relevant statute for rejection of uninsured motorist bodily injury coverage provides, “However, the coverage required to be provided under this section shall not be applicable where any insured named in the policy shall reject the coverage, and this rejection shall continue until withdrawn in writing by the insured.” Ark. Code Ann. § 23-89-403 (a) (2) (Repl. 1999). While the statute provides that withdrawal of the rejection must be in writing, it does not require that the rejection itself be in writing. If the legislature had intended to require the rejection to be in writing, it could easily have said so. For instance, the legislature required that if an insured purchases uninsured motorist bodily injury coverage, then written rejection of uninsured motorist property damage coverage is required for certain purposes. See Ark. Code Ann. § 23-89-404 (Repl. 1999). Also, written rejection of no-fault insurance is required. See Ark. Code Ann. § 23-89-203 (Repl. 1999). Underin-sured motorist coverage also speaks in terms of a written rejection. See Ark. Code Ann. § 23-89-209(a)(l) (Repl. 1999).
To support its claim that uninsured motorist coverage must be rejected in writing, appellant cites Shelter Mut. Ins. Co. v. Irvin, 309 Ark. 331, 334, 831 S.W.2d 135, 137 (1992), where the Arkansas Supreme Court stated that “like no-fault and uninsured coverage situations, insurers shall provide underinsured motorist coverage to the named insured unless such coverage is rejected in writing by the insured.” The language relied upon by appellant, however, is dicta, as that case involved underinsured motorist coverage. Thus, based on a fair reading of the statute, we decline to hold that written rejection of uninsured motorist bodily injury coverage is required.
Appellant further argues that even if written rejection of uninsured motorist bodily injury coverage is unnecessary, there remained a material issue of fact regarding whether Madlock rejected such coverage. On appeal, the standard of review of a summary judgment is well-settled. Recendy our supreme court restated the standard of review in Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 518, 17 S.W.3d 467, 469 (2000), as follows:
Our review of a trial court’s summary judgment focuses on whether the evidence presented by the movant left a material question of fact unanswered. Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). The moving party bears the burden of sustaining the motion, and the proof submitted is viewed in a light most favorable to the party resisting the motion. Once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
See also Ark. R. Civ. P. 56.
We conclude that there are no remaining material issues of fact. In support of its motion for summary judgment, appellee submitted two affidavits. In one affidavit, Madlock, the insured, stated that he was offered and that he declined uninsured motorist coverage. In the other affidavit, Steve Buelow of Anderson-Frazier Insurance Agency stated that he issued the policy to Madlock and offered uninsured motorist coverage to him, but that it was declined. Appellant presented to the trial court the deposition of Madlock, but in that deposition, Madlock essentially reiterated what he stated in his affidavit. Given this evidence, we must conclude that no material issue of fact remains; Madlock rejected uninsured motorist bodily injury coverage. Thus, we affirm the trial court’s granting of summary judgment in favor of appellee.
Affirmed.
Pittman and Meads, JJ., agree. | [
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BRANDON J. HARRISON, Judge
11 Sharon K. Barton, Robert Franklin Bryant, Gallie Thomas Bryant, and Paulette Frances Bryant (collectively the Bryants) filed a complaint for trespass and ejectment against Bobby and Sheila Broc-kinton in Faulkner County Circuit Court in August -2012. The Bryants and the Brockintons are adjacent landowners.
The Bryants amended their complaint in October 2012, alleging that the Brockin-tons had destroyed a fence, trespassed, and constructed three storage units on their land. The Bryants asked for a total of $40,000 in damages and for the court to eject the Brockintons from their property. The Brockintons responded to the Bryants’• complaint, denied all allegations of wrongdoing, and raised fourteen affirmative defenses."
lain April 2013, the Brockintons moved for summary judgment. The circuit court held a hearing on the summary-judgment motion in July 2013 and orally denied it. Two months later, the Brockintons filed a counterclaim, alleging that the Bryants’ lawsuit “caused a cloud” on their title, making them unable to build duplexes on the property, and that they were entitled to $1,200 in monthly damages. The Bryants responded and argued, among other things, that the Brockintons failed to state sufficient facts upon which relief could be granted, and their counterclaim should be dismissed pursuant to Arkansas Rule of Civil Procedure 12(b)(6).'
The case was tried in April 2014 over the course of two days. The parties put forth competing surveys and testimony about the proper boundary line between the Brockintons’ and Bryants’ properties. The court entered a written order on 4 June 2014, stating,
1. This is the Court of proper jurisdiction and venue.
2. This case involved the location of a boundary between the property of the Plaintiffs and Defendants.
3. The Court finds the survey of Defendant’s surveyor Tim Tyler to be true and correct.
4. The Plaintiffs 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.
5.- The Plaintiffs’ petition is denied and dismissed.
On 25 September 2014, the court entered an “amended” order, which was exactly the same as the June order except that it had a Rule 54(b) certificate attached. The Bryants filed a notice of appeal from the June 4 and September 25 orders, on 15 October 2014.
l.qBecause the orders the Bryants have appealed are neither final nor certified properly under Rule 54(b),, we dismiss their appeal without prejudice for lack of a final, appealable order.
The question of whether an order is final and- subject to appeal is a jurisdictional question that this court will raise on its own. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432. The requirement of a final judgment is the cornerstone of appellate jurisdiction; this court reviews only final orders. Ark. R. App. P.-Civ. 2(a). Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. For an order to be final and appealable, it must dismiss the parties from the court, discharge, them from the action, or conclude their rights to the subject matter in controversy. Id.
Arkansas Rule of Civil Procedure 54(b) is an exception to this general rule and may apply when “one or more but fewer than all of the claims” is adjudicated. Ark. R. Civ. P. 54(b) (2015). Pursuant to Rule 54(b) a circuit court may direct “the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just ’reason for delay and upon an express direction for the entry of judgment.” When determining that there is “no just reason for delay,” the circuit court must weigh “the overall policy against piecemeal appeals against whatever exigencies' the case at hand may present.”' Murry v. State Farm Mut. Auto. Ins. Co., 291 Ark. 445, 447, 725 S.W.2d 571, 572 (1987) (quoting" Federal Practice and Procedure § 2659 (1983)).
Facts supporting a Rule 54(b) certification must be stated in the circuit court’s order; that the record may contain facts supporting the circuit court’s Rule 54(b) certificate is not Insufficient. See Bayird,- 2009 Ark. 455, at 4, 344 S.W.3d at 84 (“[Mjerely tracking the language of Rule 54(b) will not suffice.”). A circuit court’s Rule 54(b) findings and certifications are reviewable for an abuse of discretion. . Id. The role of the appellate court is “not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are judicially sound and supported by the record.” Id. Our supreme court has also stressed that the discretionary power of the circuit court to direct finality should be “exercised infrequently and only in harsh cases.” Robinson v. Villines, 2012 Ark. 211, at 6, 2012 WL 1739140. The time for filing a notice of appeal begins to run upon entry of a judg ment that includes-a proper Rule 54(b) certificate. See Ark. R. Civ. P. 54(b)(3); see also Lee v. Martindale, 363 Ark. 249, 213 S.W.3d 1 (2005).
The Bryants maintain that the certification is proper under Arkansas Rule of ' Civil Procedure 54(b), so they may appeal now. But the Brockintons ask us to dismiss the Bryants’' appeal because (1) we lack “subject matter jurisdiction” due to an untimely notice of appeal, (2) the Rule 54(b) certificate is deficient, and (3) the appealed orders do not describe the boundary line between" the parties with enough specificity.
On the first point, the Brockintons argue that the thirty-day window for filing a notice of appeal “should have started after [the June 4] non-final order.” Their rationale is that “the closing of the case [by entry of • the June 2014 judgment] should operate as a clear directive to the parties that they should make the necessary preparations for appeal.” We reject this argument.
The Bryants did not have to appeal within thirty days of the June 2014 order. Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a claim may be | ¿dismissed without prejudice to a future action by the plaintiff before final submission of the case; but “it is effective only upon entry of a court order dismissing the action.” Ark. R. Civ. P. 41(a)(1) (2015). Rule 41 also applies to the dismissal of any counterclaim, cross-claim, or third-party claim. Ark., R. Civ. P. 41(c). The Rule 54(b) certificate in this case, states that the Brockintons “dismissed their counterclaim without prejudice”—but only a written order by the circuit court is sufficient to dismiss a claim. M; see also Bevans v. Deutsche Bank Nat’l Tr. Co., 373 Ark. 105, 281 S.W.3d 740 (2008). Because there is no written order dismissing the counterclaim in the record, the June order was not final, absent a Rule 54(b) certificate. Because the June 2014 order was neither a final order nor certified pursuant to Rule 54(b), the-Bryants did not have to appeal it within thirty days.
We agree with the Brockintons’ second jurisdiction-related point and hold that the Rule 54(b) certification was ineffective in this case. Here is the certificate:
Rule 54(b) Certificate
With respect to the issues determined by the above judgment, the court finds:
1. That the Tim Tyler survey in this matter establishes the correct boundary line between the parties’ respective parcels of property; therefore. Plaintiffs failed to meet their burden of proof.
2. Defendants filed a . counterclaim, however, they dismissed their counterclaim without prejudice. There has therefore been no ruling on the counterclaim which conceivably might be refiled since the dismissal was without prejudice.
3. The Plaintiffs state that they wish to appeal, and that the present ruling in this case should be susceptible to appeal at this time, because:
a. The ruling, until adjudicated upon appeal, infringes , upon Plaintiffs’ free use and enjoyment of the real property;
| fib. The ruling, until adjudicated upon appeal, infringes upon the Plaintiffs’ legal title to the real property; and
c. There is no just reason to delay allowing Plaintiffs’ appeal so that the ownership of the real "property may be decided;
4. The Court finds that if the Plaintiffs are required to delay an appeal" of the
■ ruling until the conclusion of the time in which Defendants may refile their counterclaim and try it on the merits, the parties will be required to expend substantial amounts of time and money in discovery, motions and trial, some of which will require use of the Court’s time and resources as well, all of which may be unnecessary depending on the results of appellate review of the appeal of this case. Likewise, the parties’ claim to and free use and enjoyment of the disputed real property will be severely limited during the pendency of this litigation and appellate review of the same, resulting in hardship and/or injustice to the final prevailing party.
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
Essentially, the circuit court gave four reasons why this appeal should be allowed without delay:
• The Brockintons may “refile their counterclaim.”
• The parties “will be required to expend substantial amounts of time and money” which may be unnecessary if the Bryants win now on appeal.
• A counterclaim may “require use of the Court’s time and resources.”
• The Bryants’ “free use and enjoyment of the disputed real property” will be limited during the appeal “resulting in hardship and/or injustice.”
These reasons do not adequately support an immediate appeal. The hardship or injustice of the Brockintons “refiling” their counterclaim is not an issue because the counterclaim has never been dismissed. And in any litigation, the parties may have to spend |7time and money on any claim, whether there is a pending counterclaim or not. Further, when a court rules adversely against a party in a property dispute, the ruling will generally interfere with that party’s “free use and enjoyment of the disputed real property” from the perspective of the party who has received the adverse ruling. The certification simply does not identify potential hardships or injustices likely to occur apart from the typical stress and expense of civil litigation. Nor does it detail facts that establish exigent circumstances. We therefore conclude that the certification in this appeal does not satisfy the requirements of Rule 54(b).
Because we are dismissing for lack of an appealable order pursuant to Rule 54(b), we need not reach the Brockintons’ third point, which is that the circuit court failed to include a proper legal description in its “final” order.
Dismissed without prejudice.
Abramson and Glover, JJ., agree. | [
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CLIFF HOOFMAN, Judge
11 Appellant Candise Michelle Montema-yor appeals from the circuit court’s order awarding joint custody of the parties’ son, M.R., to her and the child’s father, appel-lee Dave Ellison Rosen. On appeal, Montemayor argues that the circuit court clearly erred by awarding the parties joint custody instead of awarding her sole custody of M.R. We affirm.
The parties to this appeal were never married but were in a romantic relationship for approximately .eighteen months. They lived together in Fort Smith, Arkansas, and M.R. was born on October 17, 2012. The relationship ended in early April 2013, and Rosen filed a petition for paternity, requesting that he be declared the father of M.R. and that he be awarded primary custody of the child. He attached an acknowledgment of paternity that was executed by both parties shortly after M.R.’s birth. Rosen also filed an ex parte petition for temporary emergency custody, alleging that Montemayor had threatened to leave Arkansas |awith M.R. in order to keep Rosen from having contact with his child. Rosen further alleged that he had been the primary caretaker for M.R. and that Montemayor was mentally unstable and provided an inappropriate and unhealthy environment for the child.
Montemayor filed an answer and a coun-terpetition for custody, alleging that she was the proper person to have custody of M.R. She indicated that she was in the process of moving to Texas at the time she was served with Rosen’s petition, and she sought permission from the circuit court to relocate with M.R. She also requested that Rosen’s visitation be restricted and listed prior criminal proceedings in Oregon in which Rosen had been involved.
A temporary custody hearing was held on May 9, 2013. Rosen testified, that he had been very involved in M.R.’s care and that he had stayed at home with the child when Montemayor returned to work after maternity leave. He testified that he left Montemayor in April 2013 because she was verbally abusive to him. Rosen. stated that Montemayor had exhibited bouts of rage and .hysteria in front of M.R. and that she had also physically, assaulted him while he was holding the child. He stated that Montemayor had attempted, suicide when she lived in Oregon, that she was subsequently hospitalized, and that she had been diagnosed with bipolar disorder. He further indicated that her older children, who now lived with their father, had previously been removed from her custody due to her mental instability. Rosen testified that he did not take M.R. with him when he left Montemayor because he was concerned about the legal ramifications of not having had his paternity formally established. After their relationship ended, Ro-sen stated that Montemayor repeatedly called and texted him, threatening to move with M.R. to Texas if he did not reconcile with her.' He testified |¡¡that she also came to his workplace and relayed the same threat to his boss.
Subsequent to the filing of his petition for paternity and for custody, Rosen stated that Montemayor had not contacted him and that he did not know where she and M.R. were currently residing. Rosen testified that he was very concerned about M.R. due to Montemayor’s mental instability and violent outbursts and that he wished to have primary custody, with Montemayor receiving standard visitation. He indicated that he had a great job, which was very flexible, and that he had arranged for childcare if necessary. Ro-sen admitted that he .had been convicted of multiple felonies in 2007, including burglary, theft, unlawful possession of a firearm, and possession of methamphetamine; however, he indicated that the majority of his convictions resulted from a single, isolated incident. He testified that he had successfully completed his probation on those charges, that he had rededicated his life and moved on, and that he had not been in trouble. since that time. Rosen also agreed to. take a drug test to demonstrate that he no longer had a substance-abuse problem.
Montemayor'testified that-she and M.R. •had moved to Texas in April and were currently living with her grandmother. Montemayor stated that she was aware that she was prohibited by Administrative .Order No. 1, which.had been attached to the petition and summons, from leaving the state- with the child but claimed that she had no choice because she had been evicted from her residence and had nowhere else, to stay. She denied threatening Rosen that she would leave with M.R. Montemayor also denied Rosen’s allegar tions that she had been verbally abusive or that she had displayed violent outbursts; instead, she claimed that Rosen had physically. assaulted her on numerous occasions during | ¿her pregnancy. She further stated that Rosen had used methamphetamine while she was pregnant and that he began drinking heavily after M.R. was born. Montemayor testified that, on one occasion, Rosen had taken M.R. in the car, and when he returned, he forgot that the child was still in the car until Montemayor questioned him. She claimed that she was unaware of Rosen’s 2007 convictions until after she became, pregnant. Montemayor testified that she would not let, Rosen have unsupervised or overnight visits after their break up-because of her concerns abqut Rosen’s alcohol use.
Darcy Bates,-who: was M.R.’s babysitter both before and after the parties’ relationship had ended, testified that- the child appeared to be well cared for. Although Montemayor had mentioned her concerns about Rosen’s drinking, Bates indicated that she had never witnessed any issues in that regard. • Bates testified that she had no concerns about either party’s parenting abilities.
At the conclusion of the temporary hearing, the-circuit court found that Rosen had established paternity of . M.R. and that Montemayor had violated Administrative Order No. 1 by removing M.R: from Arkansas. The court ordered Montemayor to return the child to this state pending the final custody hearing and found that it was in M.R.’s best interest for the parties to share custody on a temporary basis. Thus, Rosen-was to have the child on his days off from work, from Saturday evening through Tuesday: evening, and Montema-yor was to have custody from Tuesday evening through Saturday evening. The court also ordered that both parties complete a psychological evaluation and a drug-and-alcohol assessment.
The final custody hearing was held on August 14, 2014. Rosen testified that since the ^temporary hearing, there had been some issues with the parties’-custody exchanges due to Montemayor’s hostility, and they agreed to move the exchanges to the police - department. He also stated that Montemayor had called the police for a welfare check on three occasions when he had custody of M.R. According to Ro: sen, Montemayor would phone his home ten to twelve times during the course of a day, becoming increasingly belligerent, and he would finally refuse to answer the phone. He further testified that Monte-mayor had driven by his home at least fifty times and that his neighbors had seen her in his yard when he was at work. Rosen introduced copies of multiple texts between the parties containing threatening and hostile statements by Montemayor. For example, in one text, Montemayor stated, “I hate your guts David.” In another text discussing her issues with M.R.’s behavior, she responded to Rosen’s reference to his home with, “This is not his home and it is offensive that you would use that term. Do not confuse my child. ' He has one home but is temporarily ■ being dragged between.”- Rosen testified that Montemayor was also very'1-paranoid that he had a girlfriend, which he denied; he stated that shé would text him asking why he had an extra car seat in his car, who owned an unfamiliar vehicle- that was parked in his driveway, and why did M.R. smell like women’s perfume. :
Rosen testified that he had always been respectful and cordial in their communications despite Montemayor’s hostility toward him. He stated that he had changed his work schedule to accommodate Monte-mayor when she needed him to keep M.R. for several days, that he had bought flowers for M.R. to give Montemayor on Mother’s Day, and that he had always kept her informed of any necessary information regarding their son. Rosen denied that he [fihad ever been violent toward Montema-yor, and while - he admitted that he had been involved in tumultuous relationships with ex-girlfriends, resulting in ■ several protective orders, he denied that he had ever been physically abusive. He testified that these were mistakes in his past, that he had “found the Lord again,” and that his priorities had changed significantly since his son had been born. Rosen admitted that he had' received a prescription for marijuana pills- from his family doctor in Oregon in January 2013; however, he stated that it was for back pain, that the prescription was for only ten pills, and that he had not taken any since that time. He confirmed that he, had passed his recent drug tests and that he., had obtained a drug-and-alcohol assessment, .which concluded that he had no significant substance-abuse problem and that he did not need alcohol or drug treatment.
While Rosen agreed -that physical custody of M.R. needed to be shared by both parties, he testified that he- wanted primary legal custody because of their fundamental differences toward religion and medical care. He indicated that he attends church each -Sunday and that he had enrolled M.R.-in the church preschool program. In addition, he testified that he had kept M.R.’s immunizations up to date, while Montemayor had wanted to delay them.. Rosen stated that it was -in M.R.’s best interest for both parents to be involved in his life and that he was the one who would best facilitate equal access to both parents, while Montemayor would abuse her custodial -rights if she were to receive primary custody.
Fort Smith Police' Officer John'Little testified that he had been called to Rosen’s residence on three occasions in August and September 2013. On one occasion, Monte-mayor refused to leave the home until she found out if M.R. was okay. On the other two occasions, LMontemayor had requested a welfare check. On all three visits to Rosen’s home, Little testified that M.R. was fine and that he had no concerns about the child. Little further indicated that Rosen was cooperative and that the home was clean and appropriate, According to Little, the welfare checks were not warranted, and he advised Rosen that he could show- the incident reports to the prosecutor to see if there were grounds for harassment.
Rosen’s boss, Paul Weisenfels, testified that Rosen was an excellent employee and that he had not had any suspicions of drug use or alcoholism by Rosen, despite being aware of Rosen’s history. Weisenfels stated that he was also M.R.’s godfather and indicated that M.R. and Rosen were bonded to one another and had a strong relationship. According to Weisenfels, Rosen was very attentive to M.R. and was able to provide for all of the child’s needs. Vicky Cowen, Rosen’s neighbor, also testified about the strong bond between M.R. and his dad. Cowen further stated' that on one occasion, she saw Montemayor drive down their street and take pictures of Cowen’s daughter while they were outside getting a carseat out of their car, which had been parked in front.of Rosen’s house.
Montemayor testified that since the temporary hearing, she had moved back ■ to Fort Smith, acquired her own residence, and was employed at the public library. She indicated that she had attempted to follow the temporary-custody- order “to a T,” so she agreed that she had not been flexible with Rosen about changing the time for their exchange based on his work schedule, even though it would have given her additional time with her son. She stated that she did not have custody of her older two children, although she did have visitation. She admitted that she was behind on her child-support payments for those children. Montemayor |sdenied having been diagnosed with bipolar disorder or having attempted suicide. She explained that she had been hospitalized in Oregon on three separate occasions due to her grief after one of her children died from a heart defect. Montemayor also entered into evidencé her psychological-evaluation repoit, which did not diagnose her with any specific mental disorder. Montemayor admitted that she had requested a welfare check on Rosen’s home on several occasions, but she claimed that M.R. had been sick and that' she was concerned because Rosen would not answer the phone. She also admitted that she had driven by his residence and had taken photos, due to‘her concern for who was around M.R. while he was in Rosen’s custody.
Montemayor stated that she was concerned about Rosen having custody because of his drug and alcohol use, as well as his physical and verbal abuse of her. She introduced pictures of bruises and scratches that she claimed had- been caused by-Rosen. She admitted that she-did not like Rosen, although she stated that she had been civil to him and that she would communicate with him when it was necessary concerning M.R. Montemayor further indicated that ■ she would follow whatever visitation schedule the court ordered. If Rosen had recovered from his drug and alcohol addiction and if he received treatment for anger management, Montemayor agreed that Rosen could be a good role model for M.R. She testified that she should .be awarded custody, however, because she loved being.a mother, she had not spent a night away from her son until it was court ordered; she did not have a criminal background, and she had followed all court orders since the temporary-custody order.
InSandra LaMar, Montemayor’s previous boss, testified that she had seen Montema-yor interacting with her children and that Montemayor is a very loving and protective mother, who is concerned for her children’s welfare. She also indicated that Montemayor was -a dedicated employee and got along well with her coworkers. Montemayor’s current supervisor at the library, Robin Denimzz, testified that she had also witnessed Montemayor with M.R., indicating that she treats her son with compassion and kindness and that he is a happy child. Denimzz further stated that Montemayor is patient and kind with all of thelibrary patrons.
Following the hearing, the circuit court took the matter under advisement but noted that it had “real concerns with, quite frankly, the venom and anger of the defendant,” which the court found had been demonstrated in every comment Montema-yor made about Rosen. On October 7, 2014, the circuit court entered an' order awarding joint physical custody of M.R. to the parties, with Rosen being considered the primary custodian and. the final decision maker for educational, medical, and religious decisions. The court found that Rosen was the person most likely to ensure frequent and continuing visitation between M.R. and Montemayor and further found that Montemayor had demonstrated an inability to eoparent and cooperate with Rosen. Montemayor has timely appealed the circuit court’s decision.
This court reviews child-custody cases de novo and will not reverse a circuit court’s findings unless they are clearly erroneous. Gibson v. Gibson, 2010 Ark. App. 741, 2010 WL 4327099. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Because thé question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, |inwe give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Id. In fact, there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Id.
The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18. Although joint custody has been disfavored in Arkansas in the past, Act 1156 of 2013 amended Arkansas Code Annotated section 9-13-101 to state that an award of joint custody is now favored in divorce proceedings. Id. When in the child’s best interest, custody should be awarded in such a way as to' assure the frequent and continuing contact of the child with both parents. Ark. Code Ann. § 9 — 13—101(b)(l)(A)(i) (Supp. 2013). Other factors that may be considered in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child’s relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of -the child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).
Montemayor argues on appeal that the circuit court clearly erred in awarding the parties joint custody, instead of awarding her sole custody, in light of Rosen’s criminal convictions', drug use, alcohol consumption,” and violent actions and tendencies. She contends that Rosen was convicted of thirteen felonies, while she has no convictions of any sort. She also argues that Rosen attempted to discharge his criminal fines and ' costs in a bankruptcy [ ^proceeding in Oregon and that,' furthermore,' he wás not truthful in that proceeding because he had represented that he had been domiciled or 'had a residence in that state for 180 days immediately preceding the petition, while he stated to the circuit court in this case that he had been a resident of Arkansas during that time peri-ód. Montemayor also points to the evidence that Rosen had been the subject of several no-contact orders by previous girlfriends and asserts that this evidence corroborates her testimony about the abuse she claims to have suffered at the hands of Rosen. As to the drug-and-alcohol issue, Montemayor contends that her testimony as to Rosen’s methamphetamine use during their relationship, as well as his admission to receiving a prescription for marijuana in January 2013, demonstrates that his drug usage is not limited -to his past as he represented to the .circuit court. In addition, Montemayor argues that the circuit court overlooked Rosen’s drinking habits, as well as the evidence that Rosen was the one who had refused to cooperate with her regarding M.R.
While there was evidence presented by Montemayor at the custody hearings on each of the concerns she raises in regard to Rosen’s parental fitness, there was also evidence presented by Rosen that either contradicted ' or- explained each of these concerns. Further, Rosen admitted to having made mistakes in the past, but he testified that his priorities had changed since his son had been born. While neither party’s conduct was perfect, the circuit court was required to weigh the conflicting evidence presented at the hearings and was in the superior position to evaluate the credibility of the witnesses. See Nicholson v. Harrison, 2013 Ark. App. 44, 425 S.W.3d 851 (affirming trial court’s award of custody to father despite mother’s allegations of physical abuse). It is not this court’s role to conduct a trial de novo ,|12and to consider questions of fact and issues of law as if there had been no trial. Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773. The circuit court in this case specifically noted its concern about Montemayor’s anger toward Rosen and found that Rosen would better ensure frequent and continuing contact between M.R. and his mother. Accordingly, we cannot hold that the circuit court’s decision was clearly erroneous, and we affirm the award of joint custody. .
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree, | [
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PAUL E. DANIELSON, Associate Justice
11 Appellants Raymond Edwards and Patricia Edwards appeal from the circuit court’s order denying their motion for custody of their granddaughter, M.A.E., and dismissing them from the dependency-neglect proceedings brought by appéllee Arkansas Department of Human Services (“ADHS”). The Edwardses’ appeal was originally dismissed by the court of appeals, see Edwards v. Arkansas Dep’t of Human Servs., 2015 Ark. App. 267, 460 S.W.3d 802, and this court granted the Edwardses’ petition for review. Upon the grant of a petition for review, we consider the case as though it had been originally filed in this court." See Mahone v. Arkansas Dep’t of Human Servs., 2011 Ark. 370, 383 S.W.3d 854. On appeal, the Edwards-es assert that (1)‘their notice of appeal and amended notice of appeal Were timely filed and (2) there wás insufficient evidence that the denial of their motion for custody was in M.A.E.’s |?best interest. Because the order from which the Edwardses appeal is not a final, appealable order, we dismiss the appeal. ■
On March 9,2011, ADHS filed a petition for emergency custody and dependency neglect against Trish Edwards and Bruce Edward Allen, the parents of M.A.E., M.E., and’AE. An ex parte order for emergency custody was then entered, finding that immediate removal of the children from their mother was in their best interest and necessary to protect their health and safety, and placing custody of the children with ADHS. Subsequently, a probable-cause order was filed. In May 2011, the children were adjudicated dependent neglected due to environmental neglect, with the goal of the case being reunification.
On July 6, 2011, the Edwardses, the children’s maternal grandparents, moved to intervene in the matter, and the circuit court granted their motion. In October 2Ó11, the Edwardses filed a petition seeking guardianship of the three children, and on May 9, 2012, they filed a motion for child custody, asserting that it was in the best interest of the children to be placed in their custody and continue to be raised together as a family unit. On November 13, 2012, ADHS and the children’s attorney ad litem jointly petitioned for termination of the parental rights of Trish and Bruce. Shortly thereafter, the Edwardses filed an amended petition seeking to be appointed the guardians of M.A.E.,' M.E., and A.E.
On May 8, 2013, an agreed order was entered, permitting the Edwardses to visit M.E. and A.E. two times a week and directing family counseling for the Edwards-es, M.E., and A.E. |3In addition, the order directed that, as of June 20, 2013, temporary custody of M.E. and A.E..,was to be transferred from ADHS. to the Edwardses. In May 2014, the circuit court entered an order granting permanent custody of M.E. and A.E. to the Edwardses as of November 4, 2013, finding that it was in the best interests of M.E. and A.E. and best for their health, welfare, and safety. At the same time, the court ordered that M.A.E. remain in foster care, reserving its ruling as to her future placement.
In its order of July 31, 2014, however, the circuit court ruled that, while -it was clear .that the Edwardses were good people who loved and cared deeply for M.A.E., it was not in M.A.E.’s best interest to be placed in their custody, nor was it best for her health, welfare, and safety. To that end, the circuit court denied the Edwards-es’ motion for custody^ of M.A.E. and ordered that she was to remain in foster care. It also ceased all visitation between the three siblings and permitted a final visit between M.A.E., her siblings, and the Edwardses, Finally, the circuit court dismissed the Edwardses from the case and included a certificate pursuant to Arkansas Rule of Civil Procedure 54(b) in its order. It is from this order that the Edwardses bring the instant appeal.
As their first point on appeal, the Ed-wardses assert that their appeal is timely because both their notice of appeal and amended notice of appeal were timely filed. They contend that their appeal is from the denial of a motion for custody, not one falling within the confines of Arkansas Supreme Court Rule 6-9, which governs appeals in dependency-neglect cases; |¿therefore, they assert,.the twenty-one-day limit for filing a notice of appeal set forth in Rule 6-9 does not apply. Instead, they aver, that their appeal is a juvenile case governed by Arkansas Rule of Appellate Procedure-Civil 2(c), which provides that such appeals are to.be made in the same time and manner as appeals from circuit court, and, as' such, they had thirty days in which to file their notice of appeal.
ADHS responds that, assuming the case is appealable, any order arising from a dependency-neglect proceeding should be subject to Rule 6-9. The attorney ad li-tem for M.A.E. agrees with and adopts the position of ADHS.
We need not address the timeliness of the Edwardses’ notice of appeal and amended notice of appeal because we must dismiss their appeal for lack of a final order. While neither party has raised this issue, the question whether an order is final and subject to appeal is a jurisdictional question that this court will raise sua sponte. See Chitwood v. Chitwood, 2013 Ark. 195, 2013 WL 1932916. Here, the Edwardses bring their appeal from that portion of the. circuit court’s order denying them custody of M.A.E.; however, such an order is not appealable under this court’s rules.
Turning first to Arkansas Supreme Court Rule 6-9, which governs appeals in dependency-neglect cases, the rule provides- that the following orders may be appealed from dependency-neglect proceedings:
(A) adjudication order;
(B) disposition, review, no reunification, and permanency planning order if the court directs entry of a 'final judgment as to one or more of the issues or parties based upon the express determination by the court supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. R. Civ. P. 54(b);
|B(C) termination of parental rights;
(D) denial of right to appointed counsel pursuant to Ark. Code Ann. § 9-27-316(h); and ■
(E) denial of a motion to intervene.
Ark. Sup. Ct. R. 6-9(a)(l) (2016). Notably, the rule lacks any specific mention of an appeal from an order denying custody.
Nor does Arkansas Rule of Appellate ■ Procedure — Civil 2 permit such an appeal outright, despite the Edwardses’ claims to the contrary. ¡First and foremost, the order is not a final one in accord with Ark. R. App. P.-Civ. 2(a)(1) because the order -clearly contemplates future action with respect to the placement of M.A.E. Notwithstanding, Rule 2(d) does provide that all “final orders awarding custody are final appealable orders.” Ark. R. App. P.Civ. 2(d) (2015). In this case, however, the Edwardses, seek to appeal that portion of the circuit court’s order denying custody of M.A.E., not its grant of permanent custody of M.E. and A.E.
While the order denying custody is not explicitly appealable under either Ark. Sup. Ct. R. 6-9 or Ark. R. App. P.-Civ. 2, a circuit court may certify an otherwise non-final order for' an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. See, e.g., Pyramid Life Ins. Co. v. Parsons, 2013 Ark. 125, 2013 WL 1279074. Likewise, Ark. Sup. Ct. R. 6-9(a)(1)(B) permits an appeal from a “disposition, review, no reunification, and permanency planning order” but also requires an “express determination by the court - supported 'by factual findings” in accordance with Rule 54(b). See Ark. Sup. Ct. R. 6-9(a)(1)(B). As already noted, the circuit court in the instant ease did attempt a Rule 54(b) |(¡certification, but it- is clear under this court’s case law that the circuit court’s. certificate is simply insufficient.
Pursuant to Ark. R. Civ. P. 54(b),
[w]hen more than one claim for relief is presented in an action, whether .as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.
Ark. R. Civ. P. 54(b) (2015). With respect to the requirements of Rule 54(b), we have observed that merely - tracking the . language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is a likelihood of hardship or injustice which would be-alleviated by an immediate appeal rather than at the conclusion of the case. See Fisher v. Citizens Bank of Lavaca, 307 Ark. 258, 819 S.W.2d 8 (1991). Not only must the record show such facts, but also “[w]e have consistently held that the rule requires the order to include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and to set out the factual underpinnings that establish such hardship or- injustice.” Holbrook v. Healthport, Inc., 2013 Ark. 87, at 4, 2013 WL 776240.
In the instant case, the circuit court’s order mérely sets forth each of the circuit court’s rulings, then rebites the following languáge from the rule:
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1),- Ark. R. Civ. P., that it has determined that there is 17no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
The certificate does not include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal, nor does it detail facts that establish such a hardship ór injustice. When it does not do so, it does not satisfy the requirements of Rule 54(b). See, e.g., Robinson v. Villines, 2012 Ark. 211, 2012 WL 1739140.
Because the order denying custody of M.A.E. is not final or otherwise appeal-able, and the included certificate fails to> comply with Rule 54(b), we lack jurisdiction to hear the appeal. See, e.g., Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2013 Ark. 85, 2013 WL 831033. Accordingly, the appeal is dismissed without prejudice.
Appeal dismissed; Court of' Appeals’ opinion vacated.
Baker, Goodson, and Hart, JJ., dissent.
. Their petition affirmatively stated that they already had guardianship of another sibling, M.D.E.
. This was the date of the hearing that was held before the order was entered.
. Indeed, the Edwardses conceded as much in their petition for review. | [
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Andree Layton Roaf, Judge.
In this negligence case, appellant Wendell Campbell sued Entergy Arkansas, Inc. after receiving an electrical shock from an Entergy guy wire. Campbell argued that Entergy’s negligence was the cause of his injuries, and Entergy argued that Campbell’s own negligence caused his injuries. The case was initially submitted to the jury on a general-verdict instruction. After the jury expressed confusion about comparative fault, the trial court resubmitted the case on special interrogatories. The jury apportioned fault between Campbell and Entergy fifty-fifty, which resulted in a verdict for Entergy. On appeal, Campbell argues that the trial court erred when it submitted the case on special interrogatories because he was not allowed to argue the effect of the comparative-fault special interrogatory. We agree, and reverse and remand.
Because Campbell does not challenge the sufficiency of the evidence, a long recitation of the facts is not necessary to an understanding of the issue on appeal. While doing yard work at his residence on August 15, 2001, Campbell came in contact with a guy wire, which Entergy owned, installed, and maintained-. He suffered an electrical shock. Campbell sued Entergy, alleging that Entergy’s negligence in constructing and maintaining the electrical wire caused his injury. Entergy denied fault for Campbell’s injuries, and expert testimony was presented supporting Entergy’s theory of the case.
Following the jury’s instructions, the parties presented closing arguments. At the close of the arguments, the case was submitted to the jury on a general verdict. After the jury retired to deliberate, it returned to the courtroom without having reached a verdict. The foreperson stated that the jury was hung six to six. The trial court gave a further instruction, encouraging the jury to continue deliberating in an effort to reach a verdict. The jury again retired to deliberate.
Subsequently, the jury presented a question to the trial court. It asked, “What verdict form do we use for a fifty-fifty verdict?” Neither the trial court nor the attorneys understood whether the jury meant that it was still tied six to six, or whether they were attempting to apportion fault between the parties. The trial court sent a written response, indicating, “The Court needs clarification: Is the question that you are deadlocked 50% to 50% or 6 to 6 or; Have you determined that both the plaintiff and the defendant are each 50% responsible for the accident.” The jury circled the portion of the question that stated, “Have you determined that both the plaintiff and the defendant are each 50% responsible for the accident,” and wrote at the bottom of the note, “This is our position.” The trial court wrote back, “The way your question must be answered is to refer to instruction ‘AMI 2101 — Comparative Negligence or Fault — Claim by one plaintiff— No Counterclaim’ and be guided accordingly.” The jury then responded, “The way these forms are typed there is no way to compare percentages,” and the trial court responded, “You are not required to assess percentages of negligence on the verdict form itself. But to use those percentages you reach to choose the correct verdict form according to 2101.”
After some time, the jury returned with yet another question. The trial court opined to the attorneys that it believed that the jury had decided that fault should be apportioned between the parties fifty-fifty; that it would be silly to require the jury to continue in this manner; and that he was submitting the case on interrogatories. Campbell objected to the submission of the case, on interrogatories, asserting that the parties were not given the chance to present closing arguments on the interrogatories, but stated that if the trial court submitted the interrogatory, it should submit the entire instruction. Following the preparation of the interrogatories, the jury was called back into the courtroom for further instruction. The case was submitted to the jury on interrogatories, and the jury, by apportioning fault fifty-fifty, returned a verdict in Entergy’s favor. Campbell appeals.
Campbell argues that the trial court erred by submitting the case on interrogatories after the parties had presented closing arguments, thereby preventing him from arguing the effect of an answer to any interrogatory as required by Arkansas Code Annotated section 16-64-122(d) (Supp. 2003).
The basic rule of statutory construction is to give effect to the intent of the General Assembly. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id; see also Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). Arkansas Code Annotated section 16-64-122(d) provides, “In cases where the issue of comparative fault is submitted to the jury by an interrogatory, counsel for the parties shall be permitted to argue to the jury the effect of an answer to any interrogatory.” (Emphasis added.) The word “shall” is considered mandatory. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001).
. Consequently, Campbell should have been permitted to argue the effect of the answers to the interrogatories to the jury, and it was error for the trial court to submit the case on interrogatories without allowing Campbell further argument. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
Pittman and Crabtree, JJ., agree.
We are mindful of the supreme court’s holding in Argo v. Blackshear, 242 Ark. 817, 416 S.W.2d 314 (1967), which states that it is reversible error for the trial judge to inform the jury as to the effect of their answers to interrogatories where jurors apportioned fault 50%-50%, between the parties, because it undermined the intent to elicit the juror’s unbiased judgment on issues of fact. However,Ark. CodeAnn. § 16-64-122(d), which permits counsel to inform the jury of the effect of their answers to interrogatories, was enacted after the decision in Argo, supra. We are also aware that the federal courts have refused to apply subsection (d), finding that it conflicts with Rule 49 of the Federal Rules of Civil Procedure, which govern submission of cases on special interrogatories, and that it nullifies the trial court’s reasons for submitting the case on special verdict. We attempted to certify this case to the supreme court, however the supreme court declined to accept it. | [
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Josephine Linker Hart, Judge.
Appellant, Brent Humphries, appeals from the circuit court’s order granting summary judgment in favor of appellee, Nationwide Mutual Insurance Company, wherein the court found that a policy providing for underinsured motorist coverage was not ambiguous and that appellant’s vehicle did not meet the policy definition of an underinsured vehicle. In his three points on appeal, appellant alternatively argues that the policy provided underinsured motorist coverage under the circumstances of this case; the policy language is ambiguous; or the policy violates Arkansas law and is consequently unenforceable. We affirm.
According to appellant’s pleadings and exhibits, on February 6, 2003, appellant was a passenger in a truck owned by appellant’s mother and driven by Delbert Priesmeyer, Jr. Appellant was an insured driver of the truck, and the truck was an insured vehicle under a policy issued by appellee to appellant’s mother. Priesmeyer lost control of the truck, and the truck left the highway, went into a ditch, spun, and struck a sign. Priesmeyer died at the scene, and appellant suffered multiple injuries. Appellant settled his claim against Priesmeyer’s insurer and sought judgment against appellee for the underinsured motorist coverage policy limits of the policy issued by appellee.
The parties filed motions for summary judgment, and the circuit court ultimately awarded summary judgment to appellee. In its order, the circuit court found that the “policy is not ambiguous as to whether damages must result from an accident arising out of the ownership, maintenance, or use of the underin-sured motor vehicle” and that appellant’s “vehicle does not meet the policy definition of an underinsured vehicle.” Appellant appeals from the court’s ruling.
A circuit court grants summary judgment when a party is entitled to judgment as a matter of law. Lewis v. Mid-Century Ins. Co., 362 Ark. 591, 210 S.W.3d 113 (2005). If the language of an insurance policy is unambiguous, we give effect to the policy’s plain language without resorting to the rules of construction, but if the language is ambiguous, we construe the policy liberally in favor of the insured and strictly against the insurer. Id. Policy language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Id.
In his argument on appeal, appellant acknowledges that, under the definition section of the underinsured motorist coverage policy, the policy provides that “[w]e will not consider as an . . . underinsured motor vehicle . . . any motor vehicle insured under the liability coverage of this policy.” But he notes that, under the liability coverage of the policy, the coverage excluded “[b]odily injury to any insured or any member of an insured’s family residing in the insured’s household.” He argues that because he was denied liability coverage under this provision, the truck was not a “motor vehicle insured under the liability coverage” of the policy so as to preclude recovery under the underinsured coverage provisions. In his second point on appeal, applying the same analysis, he alternatively argues that the policy is ambiguous.
We disagree with appellant’s argument. We find persuasive the Arkansas Supreme Court’s decision in Pardon v. Southern Farm Bureau Casualty Insurance Co., 315 Ark. 537, 868 S.W.2d 468 (1994). There, under the uninsured motorist provision of the insured’s policy, the insurer was liable to pay for bodily injury damages to which the insured was entitled to collect from an owner or driver of an uninsured automobile. The policy defined an uninsured automobile as one not insured by a liability policy at the time of the accident. Also, the insured was excluded from liability coverage since he was owner of the truck. The insured’s estate argued that because he was excluded by the terms of his liability policy, the estate was entitled to recover under the uninsured motorist provision of his policy. The Arkansas Supreme Court concluded that because the insured’s truck was insured by a liability policy, his uninsured motorist coverage, by its very terms, was inapplicable.
As in Pardon, even though appellant’s liability coverage excluded bodily injury to him, the policy unambiguously defined an underinsured motor vehicle so as not to include any motor vehicle insured under the liability coverage of this policy. Therefore, we conclude as a matter of law that the terms of the policy are unambiguous and appellant is not entitled to coverage.
Appellant also asserts that the policy is ambiguous because it placed in the definition section of the policy the language that it would not consider as an underinsured motor vehicle any motor vehicle insured under the liability coverage of this policy. He asserts that the language should have been in the exclusions section of the policy, and consequently, the policy is ambiguous, as the language is “hidden.” We disagree. We see nothing ambiguous about defining a term, and in doing so, limiting its scope.
In further asserting that the policy is ambiguous, appellant notes that the policy provides for payment of “compensatory damages . . . because of bodily injury suffered by you or a relative and which are due by law to you or a relative from the owner or driver of ... an underinsured motor vehicle.” He asserts that because Priesmeyer was the owner of an underinsured vehicle, he is entitled to coverage, and that this creates an ambiguity.
In Lewis, the Arkansas Supreme Court held that there was underinsured motorist coverage, even though the underinsured vehicle was not involved in the accident, noting further that there was no policy language stating that the accident must arise out of the ownership, maintenance, or use of the underinsured motor vehicle. The policy in this case, however, contains the language missing from the policy in Lewis. Specifically, the policy provides that the “[d]amages must result from an accident arising out of the: 1. ownership; 2. maintenance; or 3. use; of the ... underinsured motor vehicle.” This language indicates that the bodily injury must arise from the involvement of the underinsured’s vehicle in the accident. Appellant’s damages did not result from an accident arising out of Priesmeyer’s ownership of the underinsured vehicle. Thus, we conclude that there is no ambiguity.
Appellant also asserts that the insurance policy violates Ark. Code Ann. § 23-89-209 (Repl. 2004), which concerns underin-sured motorist coverage. He argues that the statute contemplates “underinsured motorist coverage to apply when the torfeasor’s liability insurance carrier, the underinsured motorist in this case, has paid their policy limits,” and that by focusing its coverage on the vehicle and not the motorist and tortfeasor, appellee’s definition is contrary to the statute and therefore unenforceable. We disagree.
Our statute specifically provides that the underinsured motorist “coverage shall enable the insured ... to recover from the insurer the amount of damages for bodily injuries to or death of an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of the other owner or operator are less than the amount of the damages incurred by the insured.” Ark. Code Ann. § 23-89-209(a)(3). Given the statute’s emphasis on recovery from the owner or operator “of another motor vehicle,” we cannot conclude that the policy in this case violates the statute by excluding from its definition of underinsured motor vehicle “any motor vehicle insured under the liability coverage of this policy.” Moreover, the Arkansas Supreme Court has specifically held that the Arkansas statutes do not require that an auto policy provide underinsured coverage where no underinsured vehicle is involved in the accident. Lewis, supra.
Affirmed.
Bird and Griffen, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellant, Elmer J Mayweather, appeals from the Workers’ Compensation Commission’s decision finding that he failed to show by a preponderance of the evidence that he sustained an accidental injury arising out of and in the course of his employment with appellee, Mangum Contracting, Inc. We affirm the Commission’s decision.
Our standard of review is well-settled. On appeal, we review the evidence in the light most favorable to the Commission’s decision and affirm if the decision is supported by substantial evidence. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Evidence is substantial if reasonable minds could reach the same conclusion. Id. When the Commission denies benefits because the claimant has failed to meet his burden of proof, we affirm the Commission’s decision if the decision displays a substantial basis for the denial of relief. Id.
To be compensable, an accidental injury must arise out of and in the course of employment. Ark. Code Ann. § ll-9-102(4)(A)(i) (Supp. 1999). Appellant testified that on September 4, 1998, a Friday, he sustained an injury to his back while lifting rebar and that the pain worsened on September 8, 1998, the Tuesday following Labor Day, when he entered the cab of a pickup truck at work and twisted his back. In support of appellant’s testimony, appellant’s supervisor testified about appellant reporting an injury to his back that occurred while working with rebar; however, the supervisor was unable to recall the date of appellant’s report. The Commission, discounting the supervisor’s testimony, found that appellant’s testimony was not credible and denied benefits because it concluded that his injury did not arise out of and in the course of his employment.
The Commission relied on the testimony of the company owner, who testified that while appellant reported the September 8, 1998, incident, appellant did not report an injury on September 4, 1998, and, contrary to appellant’s claim, his employees were not working with rebar that day. The owner also recalled that while reporting the September 8, 1998, incident, appellant had advised him that his back began bothering him at home on the previous Saturday. The owner also testified that appellant reported an injury on September 23, 1998, after working with rebar.
The Commission also noted that when appellant was examined by a physician on September 8, 1998, appellant failed to mention the September 4, 1998, incident in his written report of where and how the accident occurred, instead fisting September 8, 1998, as the date of the accident and writing, “Well I had a small ache started Saturday. When I got into our work truck this morning I twisted it the wrong way.” In a document dated October 8, 1998, appellant stated that the accident occurred on September 8, 1998, and wrote, “As I was getting up into the work truck I twisted my back in a manner where I injured my disk.”
The Commission further noted that in a letter dated October 16, 1998, appellant’s attending neurosurgeon reported that appellant’s injury occurred “after he had been bending and picking up stainless steel pipe, metal rods and casings all day,” and that “[sjhortly after completing this he went to climb into the truck when he felt the pop in his lower back.” The certificate of the attending neurosurgeon, dated December 18, 1998, noted that the accident occurred September 8, 1998. In a letter dated December 28, 1998, the neurosurgeon wrote that appellant “relates his pain to a work accident that occurred several weeks ago. In the process of moving a concrete finishing machine, he felt a pop and burning type pain in his low back.” In his deposition of April 21, 1999, the neurosurgeon reported that appellant twisted or wrenched his back while using a motor-driven concrete finisher and that he attributed appellant’s injury to the use of the finisher.
The Commission concluded as follows:
The evidence shows that the claimant subsequently stated that he hurt his back lifting rebar on September 4, 1998; that he twisted his back on September 8 after a small ache the previous Saturday; and that he in fact hurt his back while lifting rebar on September 23, 1998[,] rather that September 4. The claimant later said that his compensable injury arose from picking up material all day on an unspecified date, and later that the compensable injury resulted from working with a concrete finishing machine. In comparing the varied and multiple accounts of an accidental injury alleged by the claimant with the preponderance of credible evidence of record, we must find that the claimant is not credible. Therefore, we find that the claimant failed to show that he sustained an accidental injury which arose out of and in the course of his employment with the respondent-employer.
Viewing the evidence in the light most favorable to the Commission’s decision, the Commission’s assertion that appellant’s testimony is not credible is a conclusion that reasonable minds could reach. Based on this conclusion, and particularly focusing on appellant’s report that his back began hurting on Saturday, September 5, 1998, appellant failed to establish that he sustained an accidental injury that arose out of and in the course of his employment. Thus, we hold that substantial evidence supported the Commission’s denial of benefits. See Frances, supra (reversing this court and upholding the Commission’s denial of benefits where claimant reported incidences other than the accident occurring at work as the cause of his injuries).
Affirmed.
Robbins, C.J., and Jennings, Crabtree, and Meads, JJ., agree.
Griffen, J„ dissents. | [
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Sam Bird, Judge.
The Arkansas Department of Health and Human Services (DHHS) appeals from aprobable cause and closing order of the Sebastian County Circuit Court placing custody of JTH with his paternal grandparents and closing the case. DHHS argues on appeal that the circuit court abused its discretion (1) by closing the case without conducting an adjudication hearing; (2) by granting custody to the paternal grandparents without requiring that a home study be conducted by a “licensed certified social worker”; (3) by granting permanent custody at a probable-cause hearing; (4) by granting custody to out-of-state relatives without approval from the Oklahoma DHS; and (5) by granting permanent custody to the paternal grandparents. We affirm.
Facts
At 4:48 p.m. on January 14, 2006, the Fort Smith Police Department received a call regarding an unattended child, JTH, left in a locked car at Central Mall. JTH was two years old at the time. The police responded immediately and arrested JessicaJones, JTH’s mother, for endangering the welfare of a minor when she returned to the car five minutes after the police arrived. The police called a family-services worker at DHHS, who placed a 72-hour hold on JTH at approximately 5:00 p.m.
On January 17, 2006, DHHS filed a petition for emergency custody. The circuit court granted the petition that same day, placing JTH in the custody of DHHS pending further orders of the court. The circuit court scheduled a probable-cause hearing on the matter for January 19, 2006. On January 18, 2006, Jacob Hines, JTH’s father, filed a petition to establish paternity and also requested the court to enter an order placing JTH in the temporary or permanent custody of the paternal grandparents, Iva and Thomas Hines.
Testimony at the probable-cause hearing was provided by both of JTH’s parents, his paternal grandmother, and his maternal grandmother. All testified that they lived in Sallisaw, Oklahoma. Both parents testified that Jacob Hines was the biological father of JTH and that a paternity order should be entered without DNA testing. They also said that JTH had lived with his paternal grandparents since April 2005, that the grandparents had provided excellent care, that all of the parties got along well for purposes of visitation, and that they wanted custody of JTH to remain with the paternal grandparents. Mrs. Hines testified that she loved JTH and that he had been living with her husband and her since April 2005. She also told the court that JTH was covered under their health-insurance policy, that she and JTH’s mother got along well, and that she intended to continue caring for JTH.
The father’s attorney introduced a home study performed by Martha L. Wells, a licensed social worker for the State of Arkansas, without objection. Attached to the home study were several letters from members of the community: (1) letters from several neighbors, who stated that the Hineses were good parents and respected in the community; (2) a letter from the Hineses’ loan officer, who stated that Mrs. Hines had been the primary caregiver of JTH since he was an infant and that she was a good parent; (3) a letter from a local lawyer, who opined that the Hineses were qualified to accept care and custody of JTH and added that they were hardworking, honest, kind, considerate, and financially able to support JTH; (4) a letter from the Hineses’ accountant stating that he knew the Hineses to be of sufficient means to provide support for JTH; (5) two letters from the Oklahoma DHS stating that — other than the incident at the Fort Smith mall — there were no reported incidents regarding JTH and that there were no reports of abuse or neglect connected with either of the Hineses; and (6) a letter from the local district attorney’s office stating that Mrs. Hines had never been convicted of a felony or misdemeanor of any kind.
Ms. Wells reported that the Hineses lived in a recently built, three-bedroom home on a two-thousand acre farm. She noted that the Hineses had lived on the farm for the past twenty-five years. Ms. Wells reported that upkeep and maintenance on the home were very good, that the home was adequately furnished, and that JTH had his own bedroom. The report indicated that Mr. Hines was a self-employed contractor and also sold cattle. He reported gross earnings last year of $450,000. The report also stated that Mrs. Hines did not work outside the home, had been JTH’s primary caregiver since he was an infant, and was available to care for JTH most of the time. Ms. Wells stated that, when Mrs. Hines was not available, one of her sisters who lived nearby cared for JTH. Ms. Wells’s report indicated that all of the references stated that the Hineses were good parents and well thought of in the community. Ms. Wells reported in her recommendation that the Hineses were “appropriate to be considered as custodial parents for [JTH].”
The attorney ad litem told the court that she considered Mrs. Hines an appropriate person to care for JTH and had no strong objection to placing him with her. The attorney for the father asked the court to place permanent, or at least temporary, custody ofJTH with the Hineses. The mother’s attorney stated that she had no objection to the child being placed with the Hineses. The attorney for DHHS objected to custody being granted to the Hineses and requested the court to order a home study pursuant to the Interstate Compact on the Placement of Children (ICPC) within thirty days. In answer to the court’s question about what services DHHS was proposing to provide for the family, DHHS replied: “at least parenting classes, if nothing else — I mean, the mom left the child alone, the police report says, for twenty minutes in a locked car at the Mall. At this point I can’t think of any other services.”
The circuit court made the following rulings from the bench: probable cause existed at the time JTH was taken into DHHS custody; the grandparents’ home was “totally appropri ate”; Jacob Hines was the legal father ofJTH; an approved home study was performed of the Hineses’ home; and custody of the child was placed with the grandparents, Thomas and Iva Hines. Finding that no further services were necessary, the circuit court closed the case. After the circuit court announced its decision, DHHS objected to custody being placed with the grandparents and to the case being closed. On February 10, 2006, the circuit court entered an order setting forth its rulings. DHHS brings this appeal.
Our standard of review is de novo, but we will not reverse a circuit court’s findings in a dependency-neglect case unless they are clearly erroneous or clearly against the preponderance of the evidence. Moiser v. Ark. Dep’t of Human Servs., 95 Ark. App. 32, 233 S.W.3d 172 (2006). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id.
Points on Appeal
For its first point on appeal, DHHS contends that the circuit court erred in closing the case at the conclusion of the probable-cause hearing without holding a full adjudication of all of the issues as required by Ark. Code Ann. § 9-27-315 (Supp. 2005). DHHS claims that the issues needing consideration include whether permanent custody was in the child’s best interest, visitation, child support, and whether the parents should have been provided reunification services. JTH’s father, Jacob Hines, responds, arguing that there was no need for an adjudication hearing in this case. He claims that JTH’s mother, father, and grandparents all testified at the probable-cause hearing that custody ofJTH was with the grandparents for the nine months before the mall incident, that JTH was receiving excellent care, that all of them wanted custody to remain with the grandparents, and that they were all confident that visitation would continue to work well. Jacob also contends that DHHS had nothing substantial that it would require the parents to do and that neither parent was seeking reunification. Finally, he contends that the overwhelming evidence suggested that child support was neither needed nor requested in this case.
Arkansas Code Annotated section 9-27-315 provides that, following the issuance of an emergency order, the circuit court “shall hold a probable cause hearing within five (5) business days of the issuance of the ex parte order to determine if probable cause to issue the emergency order continues to exist.” Ark. Code Ann. § 9-27-315(a)(l)(A) (Supp. 2005). While the statute limits the purpose of the probable-cause hearing to “determining whether probable cause existed to protect the juvenile” and to determining “whether probable cause still exists to protect the juvenile[,]” it provides that “issues as to custody and delivery of services may be considered by the court and appropriate orders for that entered by the court.” Ark. Code Ann. § 9-27-315(a)(1)(B) (Supp. 2005). The statute then provides that “[a]ll other issues . . . shall be reserved for hearing by the court at the adjudication hearing[.]” Ark. Code Ann. § 9-27-315(a)(2)(A) (Supp. 2005). Subsection (d)(1) states that the court “shall set the time and date of the adjudication hearing” at the probable-cause hearing.
We disagree with DHHS that this statute requires the circuit court to hold an adjudication hearing. While an adjudication hearing is generally necessary in a dependency-neglect case in order for the circuit court to consider and determine all of the issues involved, the statute does not require the circuit court to hold such a hearing. Ark. Code Ann. § 9-27-315(a)(l)(B)(ii) specifically authorizes the court to consider and determine custody and delivery-of-services issues at the probable-cause hearing. See also Miller v. Ark. Dep’t Human Servs., 86 Ark. App. 172, 177, 167 S.W.3d 153, 156 (2004) (stating that regardless of the typical goal of a particular type of proceeding, the trial court is charged with reaching a decision that promotes the best interest of the child). The circuit court in this case determined that probable cause existed at the time DHHS put a hold on JTH and then considered and entered appropriate orders regarding custody and the delivery of services. If there had been additional issues for the circuit court to consider, it should have “set the time and date of the adjudication hearing” at the probable-cause hearing. The circuit court determined that there were no additional issues to consider. We agree and hold that the circuit court was not required to schedule a hearing in this case because it made a determination regarding custody and services at the probable-cause hearing, and visitation, child support, and reunification were not in issue.
As its second point, DHHS argues that a circuit court may not change custody unless a home study is conducted by a “licensed certified social worker” and Ms. Wells, who prepared the home study in this case, was merely a “licensed social worker.” In support of its argument, DHHS cites Ark. Code Ann. § 9-27-335(d) (Supp. 2005), which provides:
Custody of a juvenile may be transferred to a relative or other individual only after a home study placement is conducted by the department or a licensed certified social worker and submitted to the court in writing and the court determines that the placement is in the best interest of the juvenile.
We reject DHHS’s argument. DHHS did not object to Ms. Wells’s qualifications, or lack thereof, when the home study was introduced during the hearing. In fact, DHHS did not object to introduction of the home study at all. We have long held that we will not consider arguments raised for the first time on appeal, and we decline to do so here. See, e.g., Flowers v. State, 92 Ark. App. 337, 341, 213 S.W.3d 648, 651 (2005); Farr v. Farr, 89 Ark. App. 196, 201, 201 S.W.3d 417, 421 (2005).
We also reject DHHS’s third argument. DHHS claims that a circuit court may not grant permanent custody at a probable-cause hearing. We disagree. Ark. Code Ann. § 9-27-315(a)(l)(B) specifically provides that “issues as to custody and delivery of services may be considered by the court and appropriate orders for that entered by the court.”
For its fourth point, DHHS argues that the circuit court abused its discretion by making an out-of-state placement without first receiving written authorization from the Oklahoma DHS as required by the Interstate Compact on the Placement of Children (ICPC). Article III of the ICPC states in pertinent part:
(a) No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.
(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public au thorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.
Ark. Code Ann. § 9-29-201(111) (Supp. 2005).
The Arkansas Supreme Court made it very clear in Nance v. Arkansas Department of Human Services, 316 Ark. 43, 870 S.W.2d 721 (1994), and in Huff v. Arkansas Department of Human Services, 347 Ark. 553, 65 S.W.3d 880 (2002), that the scope of the ICPC is limited to placement of a child in foster care or dispositions preliminary to an adoption. However, DHHS argues that the supreme court’s holdings in Nance and Huff do not apply to this case because the legislature added a definition of “foster care” to the ICPC in 2003, which, DHHS argues, would include placement of JTH with the Hineses. We disagree.
The newly added definition states as follows:
(e)(1) “Foster care”means the care ofa child on a twenty-four-hour-a-day basis away from the home of the child’s parent or parents. The care may be by a relative of the child, by a non-related individual, by a group home, or by a residential facility or any other entity.
(2) In addition, if twenty-four-hour-a-day care is provided by the child’s parents by reason of a court ordered placement, and not by virtue of the parent-child relationship, the care is foster care.
Ark. Code Ann. § 9-29-201(11) (Supp. 2005). This definition makes it clear that whether a situation is considered foster care depends not upon the relationship of the caregiver with the child but upon the reason for the placement of the child with the caregiver. Even placement with a child’s own parents may be considered foster care. See Ark. Code Ann. § 9-29-201 (II) (e)(2). Moreover, while a grandparent may serve as his grandchild’s foster parent, a grandparent may also serve as guardian, custodian, or simply as a grandparent entitled to regular visitation. See Ark. Code. Ann. § 9-28-501 to -503 (Repl. 2002) (foster parent); Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005) (guardian); Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998) (custodian); Ark. Code Ann. §§ 9-13-103, 107 (Supp. 2005) (visitation). The circuit court in this case did not place JTH in foster care with anyone. It simply restored custody of JTH to his paternal grandparents. < ■
Further, DHHS’s argument distorts the purpose for and reason behind the ICPC. The purpose and policy behind the ICPC is for “party states to cooperate with each other in the interstate placement of children[.]” Ark. Code Ann. § 9-29-201(1) (Supp. 2005). “The provisions of this compact shall be liberally construed to effectuate the purposes thereof.” Ark. Code Ann. § 9-29-201 (X) (Supp. 2005). This case is not about “the interstate placement of children”; nor does it involve a territorial dispute between courts in different states regarding whose custody order controls. This case is about an emergency order entered to protect a child who was left in a locked car outside of an Arkansas mall for less than twenty minutes. The child, the parents, and the custodial grandparents all live in Oklahoma. No party is attempting to involve any other state court or custody order. The child’s paternal grandparents have custody of the child by agreement of his parents. A home study and numerous letters from community members indicate that the grandparents are good, loving parents and that their home is more than adequate. The circuit court did not “place” the child with “foster parents,” but simply ordered that custody of the child remain with his grandparents. We hold that the ICPC is not applicable to the particular facts of this case and that the circuit court’s order granting custody to the child’s grandparents without first receiving written authorization from the Oklahoma DHS was not clearly erroneous.
Finally, DHHS argues that the circuit court should have declined to issue any permanent orders in this case because Arkansas was not JTH’s home state and, therefore, it did not have subject matter jurisdiction to do so under the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Ark. Code Ann. § 9-19-101 (Repl. 2002) (the “Act”). DHHS cites Murphy v. Danforth, 323 Ark. 482, 915 S.W.2d 697 (1996), to support its argument that the circuit court’s powers were limited and should not have been used to enter a permanent custody order. Jacob claims that the circuit court acted properly under its emergency jurisdiction authorized by Ark. Code Ann. § 9-19-204 (Repl. 2002).
Arkansas Code Annotated § 9-19-204(a) (Repl. 2002) states that “[a] court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.” “[A] child-custody determination made under this section remains in effect until an order is obtained from a court of a State having jurisdiction” under the Act. Ark. Code Ann. § 9-19-204(b) (Repl. 2002). We agree with Jacob. The circuit court had authority under this statute to enter an order granting custody to the grandparents.
DHHS’s reliance upon the supreme court’s decision in Murphy is misplaced. In Murphy, the supreme court said that emergency jurisdiction should not be used “to modify a custody order permanently.” 323 Ark. at 491, 915 S.W.2dat700 (emphasis added). The circuit court in this case did not modify a custody order permanently. The court granted custody to the grandparents, who already had custody over JTH. Both parents agreed with the court’s decision. If either of JTH’s parents decides that he or she disagrees with this custody arrangement, either may pursue an action in an Oklahoma court for a change of custody. We hold that the circuit court did not clearly err in awarding custody to JTH’s paternal grandparents under Ark. Code Ann. § 9-19-204 (Repl. 2002).
Affirmed.
Gladwin and Baker, JJ., agree.
See Ark. Code Ann. § 9-29-201 (Supp. 2005).
JTH’s mother, Jessica Jones, did not file a brief in this appeal. | [
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Sam Birjd, Judge.
Appellant John Gibson Auto Sales, Inc. (Gibson), appeals from an order granting summary judgment in favor of appellee Direct Insurance Company (Direct). Gibson is an automobile dealer in Hot Springs. On February 9, 2005, pursuant to an Installment Sale Contract, Gibson sold a 1998 GMC Suburban vehicle to Rochelle Hunter. According to the contract, Hunter paid $1,000 as a down payment and Gibson financed a balance of $11,700, to be paid in monthly installments of principal and interest. The contract required Hunter to obtain a casualty insurance policy covering the vehicle, and she acquired such a policy from Direct. On June 5, 2005, the vehicle sustained a loss, and Gibson, claiming to be a lien holder and loss payee under the policy, made demand upon Direct for payment of its loss. Direct refused to pay, contending that the insurance policy had been cancelled prior to the loss to the vehicle due to non-payment of premiums.
On June 25, 2005, Gibson filed a complaint in the Garland County Circuit Court praying for judgment in the amount of $11,849.59, less applicable deductibles, and for statutory penalties, costs, interest, and attorney fees. In its answer, Direct denied that Hunter’s insurance policy was in effect on June 5, 2005, denied that Gibson was a loss payee on that date, and alleged that the insurance policy in question had been effectively cancelled on June 3, 2005, due to non-payment of premiums.
On November 1, 2005, Gibson filed a motion for summary judgment, contending that Direct had failed to give Gibson proper notice of cancellation of the policy as required by Ark. Code Ann. § 23-89-304. In the brief supporting its motion, Gibson argued that, under the statute, an insurer’s notice of cancellation of an insurance policy must be given at least twenty days prior to termination, except that where the cancellation is for non payment of premiums, the notice is not effective unless it is given at least ten days prior to termination and contains a statement of the reason the policy is to be cancelled.
Gibson attached to its motion the written notice of cancellation that it received from Direct, which was dated May 23, 2005, and provided for an effective date ofjune 3, 2005, but which did not contain a statement of the reason why the policy was being cancelled. In addition, Gibson attached a “Cancellation of Policy” dated June 13, 2005. Gibson contended that, because the May 23 notice did not contain the reason why the policy was being canceled, the cancellation could not have been effective until June 13, which was twenty days after the notice was sent. Furthermore, pointing to the June 13 cancellation notice, Gibson argued that Direct’s “own documents show the policy was in effect on the date of the loss.” Gibson therefore claimed that coverage under the policy was in effect on the date of the loss, which was June 5, 2005.
Direct filed a cross-motion for summary judgment on November 21, 2005, claiming that Gibson was “not a bank or other lending institution” and that statutory notice of intent to cancel the policy was required to be given only to the insured and “any bank or lending institution shown on the policy and having a lien on the insured’s automobile.” Direct argued that because Gibson was neither a bank nor other lending institution, Gibson was not entitled to notice, but that notice had been given to Gibson as a courtesy, rather than as a requirement of Ark. Code Ann. § 23-89-304.
In its reply to Direct’s motion, Gibson conceded that it was not a bank but argued that it was a lending institution under the statute. To support its claim, Gibson asserted that, in its normal course of business, it loaned monies and was subject to both state and federal regulations as to lending. It also asserted that the intent of the statute is to give notice of cancellation to alien holder, so the lien holder can take appropriate action to protect its interest.
By letter dated January 6, 2006, the trial court announced that it was granting Direct’s cross-motion for summary judgment, finding that the “[sole] issue [was] whether plaintiff [Gibson] in this case is a ‘lending institution.’ ” The court determined that Gibson was not a lending institution, and Gibson now appeals.
Summary judgment was appropriate in this case, as both parties concede that there are no issues of material fact left to be resolved and the issue is purely one of law, involving the interpre tation of Ark. Code Ann. § 23-89-304(b) (Supp. 2003). See State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Id. In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
Arkansas Code Annotated section 23-89-304(b) states as follows:
(1) No notice of cancellation to any bank or other lending institution shown on the policy and having a lien on the insured’s automobile shall be effective unless mailed or delivered by the insurer to the bank or other lending institution.
(2) No notice of cancellation to any bank or other lending institution shall be effective unless mailed or delivered at least twenty (20) days prior to the termination of the insurance protecting the interest of the bank or lending institution, provided that, when cancellation is for nonpayment of premium, at least ten (10) days’ notice of cancellation accompanied by the reason therefor shall be given.
Simply stated, subsection (1) provides that, to be effective, policy cancellation notices must be mailed or delivered to banks or other lending institutions that have a lien on an insured’s automobile and are shown on the policy. Subsection (2) further provides that, to be effective, insurance policy cancellation notices to banks or other lending institutions must be mailed or delivered at least twenty days before termination of the insurance policy, except that, when the reason for the cancellation is non-payment of premiums, the time for giving effective notice is reduced to ten days and the notice must contain the reason for the policy’s cancellation.
On appeal, Gibson contends that the trial court erred in its finding that Ark. Code Ann. § 23-89-304(b) did not require that it be given notice of cancellation of the insurance policy, arguing that the clear intent of the statute was to provide advance notice to lien holders that insurance would be cancelled. Gibson asserts that, although it is not a bank, as an “other lending institution” it is entitled to notice under the statute, pointing to the fact that it is regulated by both state and federal regulations for lending.
The problem with this argument is that there is nothing in the record to establish that Gibson is a “lending institution.” Although Gibson asserted that it loaned monies and was subject to both state and federal regulations as to lending, it produced no evidence that its primary function was the business of lending. We recognize that the term “lending institution,” as used in Ark. Code Ann. § 23-89-304(b), is not defined in the statute. However, in our view, the term “lending institution” means an organization that is primarily engaged in the lending business; if the organization’s credit and lending operations, however extensive, and even though regularly carried on, is an incidental function of its main business, then the organization is not a lending institution for the purpose of Ark. Code Ann. § 23-89-304(b).
Here, there is simply no proof that Gibson’s primary function was the business of lending. Rather, the evidence shows that Gibson was an automobile dealer and that its loan to Hunter was simply an extension of credit that was incidental to Gibson’s main business — selling automobiles. Though Gibson claimed that it “loaned monies,” it produced no evidence to show that this was its primary function. We therefore hold that Gibson was not a “lending institution” within the meaning of Ark. Code Ann. § 23-89-304(b), and we affirm the trial court’s decision to grant summary judgment in favor of Direct.
The dissenting judge does not disagree with the trial court’s conclusion that Gibson was not a lending institution within the meaning of Ark. Code Ann. § 23-89-304. Rather, the dissent contends that whether or not Gibson is a lending institution is irrelevant because Direct did not offer proof that the policy had been terminated prior to the loss to the vehicle on June 5, 2005. The dissenting position ignores the pleadings, summary-judgment motions, and arguments of the parties below, and overlooks the sole basis of the trial court’s decision. The parties’ pleadings and motions demonstrate that the case presented to the trial court evolved into the single question of whether Gibson was a lending institution.
For example, the essence of Gibson’s complaint is that it was entitled to recover for the June 5, 2005 damage to Hunter’s car because Gibson was named in the policy as a loss payee. Direct’s answer denied that the policy was in effect because the policy had been cancelled on June 3, 2005, due to non-payment ofpremiums. On November 1, 2005, Gibson filed its summary-judgment motion to which was attached, among other things, copies of notices of “Intent to Cancel Policy” addressed to John Gibson Auto dated May 23, 2005 and June 13, 2005, respectively. Both notices bore the applicable policy number, identified the insured (Hunter) and the insured vehicle, and contained an effective cancellation date of June 3, 2005. Gibson did not argue in its motion that it did not receive notices of the policy’s cancellation on June 3, 2005. Rather, it argued that “proper notice of cancellation was not given” in the manner required by Ark. Code Ann. § 23-89-304. Specifically, it argued that since the notice dated May 23 did not contain a statement of the reason for the cancellation as required by Ark. Code Ann § 23-89-304(b)(2), it was not effective to cancel the policy until twenty days after the notice was given. Gibson then pointed to the June 13, 2005 cancellation notice and argued that Direct’s “own documents” demonstrate that the policy was still in effect on June 5.
On November 21, 2005, Direct filed its cross-motion for summary judgment alleging and arguing that, because Gibson was not a bank or other lending institution, it was not entitled, under Ark. Code Ann. § 23-89-304(b)(l)-(2), to notice of cancellation of a policy. In its reply to Direct’s motion, Gibson alleged that the parties were in agreement as to the relevant facts in this case, and conceded that the “true issue is whether [Gibson] as a loss payee was entitled to the 20 day notice as required by A.C.A. § 23-89-304(b) (1).” Gibson admitted that it was not a bank but argued that, as a lien holder, it was an “other lending institution” within the meaning of the statute.
From the foregoing summary of the pleadings and arguments, it is clear that the issue framed by the parties in their respective pleadings and motions for summary judgment was whether Gibson was a “bank or other lending institution” within the meaning of § 23-89-304. In the letter setting forth its findings, the court noted that “the [sole] issue is whether [appellant] in this case is a ‘lending institution.’ ” In its order granting Direct’s motion for summary judgment, the only finding made by the court was that Gibson “has not established that it is a lending institution.” Gibson’s only point on appeal is that the trial court erred in its finding that Ark. Code Ann. § 23-89-304(b) did not require that notice of cancellation of the insurance policy be given to Gibson.
The dissentingjudge would have us decide this case upon an issue that was not ruled upon by the trial court. When a party does not obtain a ruling on an argument before the trial court, the issue is procedurally barred from our consideration on appeal. Israel v. Oskey, 92 Ark. App. 192, 212 S.W.3d 45 (2005). Therefore, we cannot decide this case, as the dissent urges us to, on the issue of whether the casualty insurance policy had been terminated prior to the loss of the vehicle.
Affirmed.
Pittman, C.J., and Gladwin, Crabtree and Roaf, JJ., agree.
Baker, J., dissents. | [
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Sam Bird, Judge.
In a previous opinion, Economy Inn & Suites v, Jivan, delivered Dec. 6, 2006, we affirmed the decision of the Workers’ Compensation Commission finding that Nimisha Jivan was performing employment services at the time of the accident that caused her death and awarding benefits to her statutory beneficiaries. Appellants filed a petition for rehearing. After careful reconsideration of this case, we grant appellants’ petition and issue this substituted opinion reversing the decision of the Workers’ Compensation Commission.
Nimisha Jivan and her husband worked for appellant Economy Inn & Suites in Hope: Nimisha was the assistant manager, and her husband was the manager. On February 17, 2003, Nimisha died as a result of smoke inhalation when a fire broke out at the hotel. Nimisha’s husband and two children claimed that the accident happened while Nimisha was performing employment services and that they were entitled to death benefits pursuant to Ark. Code Ann. § 11-9-527. Her employer and its insurance carrier, CCMSI, denied benefits, claiming that Nimisha was not performing employment services at the time of the accident.
All the evidence before the Commission in this case was submitted by the parties through stipulations. The parties stipulated to the following facts:
[Nimisha Jivan] was employed as the assistant manager for the respondent-employer, and in that capacity she and her husband, the hotel manager, were provided with a room in the hotel in which to live on the premises to carry out their responsibilities as employees of the hotel; that on February 17,2003, a fire occurred at the hotel, causing [Nimisha’s] death; that [Nimisha] is survived by her widower, Jack Jivan, and two minor children .... [T]hat on February 17, 2003, [Nimisha] was off duty and was in the bathroom of the hotel room provided by the respondent, changing her clothes to go to a gym to exercise when a fire occurred at the hotel; that she was not able to escape the fire and died as a result of smoke inhalation- ; that although [Nimisha] was off duty at the time her death occurred, she and her husband were always considered to be on call to address any hotel related issues, which is at least one of the reasons she and her husband were provided a room in the hotel there on the premises.
The administrative law judge found that Nimisha was engaged in employment services at the time of her fatal injury and that her injury arose out of and in the course of her employment, and he awarded benefits to her husband and two children. The Commission adopted the decision of the law judge, including all findings of fact and conclusions of law. Appellants filed this appeal.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Gen. Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). The issue on appeal is not whether the appellate court 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, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
The pivotal issue in this case is whether Nimisha was performing employment services at the time of her death. A compensable injury is defined in Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002) as “[a]n accidental injury . . . arising out of and in the course of employment. ...” A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § ll-9-102(4)(B)(iii) (Repl. 2002).
While the statute does not define the terms “in the course of employment” and “employment services,” the supreme court has held that an employee is performing “employment services” when he or she is “doing something that is generally required by his or her employer.” Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002) (quoting White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999)). We use the same test to determine whether an employee is performing “employment services” as we do when determining whether an employee is acting within “the course of employment.” Id. The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.
Here, based solely upon findings that “[Economy Inn’s] purpose and interest was advanced by [Nimisha’s] frequent and regular presence on the premises” and that Nimisha was “on call” twenty-four hours a day, the Commission concluded that her estate had proven by a preponderance of the evidence that she was engaged in employment services at the time of her fatal injury. We disagree with the Commission.
We have held that an injury is not compensable where an employee is performing an activity that is merely for the purpose of attending to his personal needs. In Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004), we held that a truck driver, who was “off the clock” but “on-call” in a motel room provided by his employer and was injured while turning on a light switch in the bathroom, was not performing employment services where there was no evidence that his entry into the bathroom was for any reason other than to attend to his own personal needs. In Kinnebrew v. Little John’s Truck, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999), we affirmed the Commission’s decision that a shower was not inherently necessary for the performance of the job a trucker was hired to do. In Kinnebrew, a truck driver who showered at a truck stop while he was off-duty but on the road and awaiting further instructions from his dispatcher slipped and fell in the shower stall. We held that he was not performing employment services because showering was not “inherently necessary” for the performance of the job that he was hired to do. Id. at 92, 989 S.W.2d at 543.
In this case, Nimisha was in the bathroom changing clothes to go exercise, an activity involving attention solely to her personal needs. The fact that she was on call in her living quarters does not necessitate a finding that every activity in which she engaged was inherently necessary to her job. Nimisha was certainly entitled to enjoy life in her home at the hotel beyond her responsibilities as the hotel’s assistant manager. The parties’ stipulation contained no evidence that she was required to remain on the premises at all times, or even most of the time, for the benefit of her employer. We cannot see how changing clothes to go exercise at a gym constituted an activity that carried out her employer’s purpose or advanced its interest any more than any other personal activity in which an employee such as Nimisha might have engaged while in her room at the hotel. Under the dissent’s reasoning, employers would be required to extend workers’ compensation coverage to every personal activity in which an employee such as Nimisha might have engaged while in her room at the hotel, including cooking, eating, washing dishes, watching television, dancing, sleeping, or falling out ofbed. We disagree and hold that fair-minded persons with the same facts before them could not have reached the conclusion that Nimisha was performing employment services at the time of her death, and we reverse the Commission’s decision awarding benefits.
Reversed and remanded for the entry of an order consistent with this opinion.
Pittman, C.J., and Hart, Gladwin, Marshall, and Miller, JJ., agree.
Glover, Vaught, and Baker, JJ., dissent.
See Ark. Code Ann. § 11-9-527 (Repl. 2002). | [
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John Mauzy Pittman, Judge.
The appellant in this workers’ compensation case injured her left shoulder at work in the Wal-Mart floral department. After treatment, she could no longer move her arm sufficiently to carry out her duties in the floral department and was demoted to greeter. She filed a claim for permanent partial disability benefits. The Commission denied the claim, finding that the range-of-motion studies conducted by her physician did not satisfy the statutory requirement that a finding of impairment must be supported by objective physical findings. This appeal followed.
For reversal, appellant contends that the Commission erred in finding that the range-of-motion test did not constitute an objective physical finding. We agree, and we reverse.
In reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Geo Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). 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 the Commission’s decision. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). 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. Flowers v. Arkansas Highway & Transportation Dep’t, 62 Ark. App. 108, 968 S.W.2d 660 (1998).
The Commission’s denial of benefits was based upon Department of Parks & Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998), where we wrote that:
[AJppellant argues that the four-percent impairment rating assessed by Dr. McLeod on March 8, 1996, is invalid because Dr. McLeod used active range-of-motion tests that do not qualify as “objective and measurable” under the Workers’ Compensation Act. Appellant. asserts that any impairment rating attributable to appellee’s right shoulder injury cannot be predicated on active range-of-motion tests. Dr. McLeod gave appellee a seven-percent shoulder impairment pursuant to the American Medical Association Guidelines, which correlates to a four-percent impairment to the body as a whole. Arkansas Code Annotated § 11 -9 — 102(16) (A) (ii) (Repl. 1996) states:
When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
This was not an evaluation of spine impairment. However, appel-lee did bear the burden to prove physical or anatomical impairment by objective and measurable physical findings. Ark. Code Ann. § ll-9-704(C)(l)(B) (Repl. 1996). “Objective findings” are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11 — 9-102(16)(A)(i) (Repl. 1996). Dr. McLeod stated that he based the impairment rating on active range-of-motion tests. The legislature has eliminated range-of-motion tests as a basis for physical or anatomical impairment ratings to the spine by definition. It was incumbent upon appellee to present evidence that active range-of-motion tests are objective tests. In other words, it was incumbent upon her to present proof that those tests do not come under the voluntary control of the patient. She did not do so. In fact, there is authority to suggest that active range-of-motion tests are based almost entirely on the patient’s cooperation and effort. See American Medical Association, Guidelines to the Evaluation of Permanent Impairment, (3d ed. 1988). “The full range possible of active motion should be carried out by the subject and measured by the examiner. If a joint cannot be moved actively by the subject or passively by the examiner, the position of ankylosis should be recorded.” Id. at 14.
Helms, 60 Ark. App. at 114-15 (emphasis supplied).
As can be seen, Helms contains dicta to the effect that active range-of-motion tests come under the voluntary control of the patient, and therefore do not constitute objective findings under Ark. Code Ann. § ll-9-102(16)(A)(i). However, the testimony in the case at bar (which the Commission expressly found to be credible) shows that the test performed in the present case was not one in which the limb was actively moved by the subject, but instead was a test in which the limb was moved passively by the examiner. Appellant testified, for example, that:
At the time of the May 18, 1998, check-up Dr. Meredith performed some tests to determine range of motion to my left shoulder. These tests did not have anything to do with my spine. Dr. Meredith did not instruct me to move my arm. ...What the doctor did with the nurse present is he put his hand under my elbow towards the forearm and guided my hand upward with my arm extended and lifted it with my elbow up and then put it back down and he raised it to the level that he had it raised and went forward and he kept going forward until he stopped and then he did the same thing going to the back. ...I did not control my arm when he was doing the test. He had my arm in his hand. At all times during the test Dr. Meredith was manipulating my arm and shoulder and I was not in control of it. ...When the doctor was performing the test I did not have voluntary control of my arm. The doctor did not ask me to move my arm during the test and I could not have moved it forward to the extent that he moved it.
Doctor Meredith stated in a letter that range-of-motion studies of the type he performed can be “objectively and consistently measured by qualified physicians with reasonable accuracy and repro ducibility. ’ ’
The Commission was not required to accept this testimony as credible. However, given that the Commission did expressly find the testimony of appellant and Dr. Meredith to be credible, the conclusion is inescapable that the tests performed on appellant were passive range-of-motion evaluations performed by the examiner and not under the voluntary control of appellant. Under these circumstances, we hold that the Commission’s opinion displays no rational basis for its finding that the range-of-motion tests performed on appellant did not constitute objective findings under Ark. Code Ann. § ll-9-102(16)(A)(i).
Reversed and remanded.
STROUD and Neal, JJ., agree. | [
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Terry Crabtree, Judge.
Appellant Jeighmichael Davis was found guilty by a jury in Bradley County of second-degree battery for which he was sentenced to a term of six years in prison and fined 12,50o. Appellant contends on appeal that the evidence is not sufficient to support the jury’s finding of guilt and that the trial court erred by refusing an instruction on third-degree battery as a lesser-included offense. We affirm.
Undra Gaines gave testimony about a disturbance that occurred while he was in jail on March 28, 2005. Mr. Gaines testified that the inmates were cleaning their cells when appellant splashed “Mr. Leon with some kind of chemical.” Gaines said that appellant then hit Mr. Leon, that appellant took Mr. Leon’s keys, and that appellant tried but was not successful in unlocking the back door. Gaines stated that appellant “was steady hitting Mr. Leon after that,” and that appellant then tried to unlock another man’s cell, and when he could not get the cell open, appellant “ended up hitting him (Leon) again.” Gaines testified that appellant threw the keys and ran back into his cell when officers arrived to help, and he said that Mr. Leon had not done anything to cause appellant to hit him.
Van Clark, who works for the Warren Police Department, testified that he and Detective Hollingsworth were in the parking lot when they heard about a disturbance involving an inmate and one of the detention officers. He said that he and Hollingsworth entered the detention area and were met by Detention Officer Leon Schultz. He said that Schultz had severe lacerations to his face and that he was bleeding. Schultz advised that he had been jumped by appellant, whom they found sitting in his unlocked cell.
Leon Schultz testified that he was working at the Warren city jail that day. He had gathered mops, water, and cleaning supplies for the inmates to use to clean their cells. Schultz said that appellant was in cell number four, that appellant had finished cleaning, and that, when he was about to lock appellant inside his cell, appellant hit him on the nose, causing his glasses to jam into his eyebrows and cut his face. Schultz said that he tripped over the mop bucket and fell while trying to defend himself, and that appellant jumped on top of him and began beating him in the head. He said that appellant took his keys and tried to get Erick Davis out of his cell but that appellant was not able to get the key to work. Schultz stated that appellant then tried to get out of the back door, and that, when he (Schultz) tried to stop him, appellant knocked him down and beat him again.
Schultz testified that he went to the emergency room afterwards where they cleaned his wounds and that he went to his personal doctor, Dr. Franklin David Chambers, the next day. He was not able to return to work for six weeks. He explained that he scraped his shin when he fell over the mop bucket and that his leg became infected and swelled badly. He said that he had trouble with infections because he was a diabetic and that he “had a real hard time” with the infection on his leg.
Dr. Chambers testified that Schultz had multiple bruises and swelling to the head, and lacerations to his forehead and upper lip. Schultz also had injured his right shoulder. He said that the infection to Schultz’s leg required a large amount of treatment and that it was an ongoing effort to control the infection.
Don Hollingsworth, who works for the Warren Police Department, testified that Schultz was a jailer on March 28, 2005. He said that when he saw Schultz in the jail that day that he had blood all over his face. He took photographs of Schultz’s injuries that were introduced into evidence.
In his testimony, appellant stated that he had been angry with Schultz because Schultz “had an arrogance about himself’ when Schultz told him that he could not use the telephone. He said that he had made up his mind about what he was going to do, and that he hit Schultz because it was what he felt like doing at the time. He said that he pushed Schultz down and dragged him around the corner and continued to hit him again and again. He said, however, that he did not try to escape. Appellant said that he was testifying to show remorse for what he had done, saying that he was coming down off drugs and that he felt badly about what he had done.
When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). 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.
A person commits battery in the second degree if he intentionally or knowingly, without legal justification, causes physical injury to a person he knows to be a law enforcement officer, firefighter, or employee of a correctional facility while the law enforcement officer, firefighter, or employee of a correctional facility is acting in the line of duty. Ark. Code Ann. § 5-13-202(a)(4)(A)(i) (Repl. 2006). Second-degree battery is a class D felony. Ark. Code Ann. § 5-12-202(b).
In contesting the sufficiency of the evidence, appellant argues that the State failed in its burden to show that the victim was a law enforcement officer or an employee of a correctional facility. This issue has not been preserved for appeal.
Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides, “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 evidence. A motion for directed verdict shall state the specific grounds therefor.” Subsection (c) of this rule provides, in pertinent part, “A motion for directed verdict . . . 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 general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002).
In his motion for directed verdict, appellant’s attorney stated, “I make a motion for directed verdict on the grounds that the State has failed to make a prima facie showing that my client committed the offense of battery against the victim.” This motion for directed verdict, which was made after the State rested, was renewed at the close of the evidence. Because appellant’s directed-verdict motion was general and did not inform the trial court of any specific deficiencies in the State’s proof, the argument appellant now makes on appeal was waived.
Appellant’s next point is that the trial court erred by refusing to instruct the jury on third-degree battery, as a lesser-included offense of second-degree battery. The jury instruction on second-degree battery tendered by the State and read to the jury by the trial court advised that “the State must prove beyond a reasonable doubt that Jeighmichael Davis intentionally or knowingly and without legal justification caused physical injury to a person he knew to be an employee of a correctional facility acting in the performance of his lawful duties.” Appellant asked the trial court to instruct the jury on third-degree battery, arguing that “there are certainly facts to show that the victim was an employee of a correctional institution but the jury may — in fact, I’m not sure if there was evidence to prove that he was employed by a correctional institution.” Appellant proffered an instruction of third-degree battery which read that “the State must prove beyond a reasonable doubt that Jeighmichael Davis, with the purpose of causing physical injury to Leon Schultz, caused physical injury to Leon Schultz.” The trial judge refused this instruction, saying “I don’t think there is a logical reason to give it.”
Appellant argues on appeal that the trial court’s ruling was in error because the jury could have found that the victim was not an employee of a correctional facility. We disagree. A trial court’s ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002). It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Cobb v. State, supra. However, we will affirm a trial court’s decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001). Where there is no evidence tending to disprove one of the elements of the larger offense, the trial court is not required to give an instruction on a lesser-included offense. Stultz v. State, 20 Ark. App. 90, 724 S.W.2d 189 (1987). If, after viewing the facts in the light most favorable to appellant, no rational basis for a verdict acquitting him of the greater offense and convicting him of the lesser one can be found, it is not error for the trial court to refuse to give an instruction on the lesser-included offense. Id.; see also Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002).
In this case, there was no evidence tending to disprove that Schultz was an employee of a correctional facility. To the contrary, there was testimony that referred to Schultz as a “detention officer” and “jailer,” and Schultz testified that he worked at the jail in Warren. As there was no evidence that Schultz was not an employee of a correctional facility, the trial court did not abuse its discretion by refusing appellant’s proffered instruction. See Stultz, supra (holding that, in a burglary case, there was no error in refusing an instruction on breaking or entering where there was no evidence that the building was not an occupiable structure).
Affirmed.
Robbins and Neal, JJ., agree.
Appellant was also charged with attempted second-degree escape, but the jury returned a verdict of not guilty on that charge.
The State argues that third-degree battery is not a lesser-included offense of second-degree battery in this instance. We express no opinion in the matter. The trial court ruled that there was no rational basis for a third-degree battery instruction. We prefer to review this point as it was presented at trial rather than address an issue that was not argued or ruled upon below.
Appellant also argues that the jury could have found that Schultz was not a “law enforcement officer.” However, the second-degree battery instruction read by the court did not include the term “law enforcement officer.” | [
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tERRY Crabtree, Judge.
The Sebastian County Circuit Court found the appellant, Austin Stephenson, guilty of second-offense driving while intoxicated and sentenced him to forty-five days in the Sebastian County Detention Center with thirty-one days suspended, fined him $950, and ordered him to complete an alcohol treatment program. In addition, the court found appellant guilty of refusal to submit to a breath test and suspended appellant’s driver’s license for six months. On appeal, appellant presents two arguments: (1) the trial court erred in finding appellant in actual physical control of a motor vehicle within the meaning of the DWI statute, and (2) the trial court erred in finding appellant guilty of refusal to submit to a breath test when the facts did not show appellant in actual physical control of a motor vehicle. We agree and reverse on both points.
The parties stipulated that on July 7, 1999, at approximately 10:22 p.m., Officer Ron Depriest of the Fort Smith Police Department was dispatched to the “Kwik Trip” to investigate a person who was passed out behind the wheel of a vehicle. When he arrived, Officer Depriest saw a white Chevrolet pickup truck parked in front of the Kwik Trip’s doors. The officer found appellant asleep, intoxicated, and sitting behind the steering wheel. Officer Depriest did not see appellant “driving the truck or otherwise physically operating it.” However, the driver’s side window was down; the motor and the car lights were off; and the keys to the vehicle were on the car dashboard.
For appellant’s first point on appeal, he argues that the trial court erred in finding that he was in actual physical control of a motor vehicle. Appellant challenges the sufficiency of the evidence in regard to his driving-while-intoxicated conviction. “Actual physical control” of a vehicle is an element of driving while intoxicated pursuant to Ark. Code Ann. § 5-65-103 (Repl. 1997). Appellant contends that there is insufficient evidence that he had actual physical control of the vehicle.
When the sufficiency of the evidence is challenged on appeal, the test is whether the evidence is substantial. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998). Evidence is substantial if it is forceful enough to compel a conclusion one way or another and goes beyond mere speculation or conjecture. Id. Our court reviews the evidence in the light most favorable to the State and considers only evidence that supports the verdict. Id.
In Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), our supreme court held that Dowell was not in actual control of his vehicle within the meaning of the DWI statute. Dowell was found asleep in his automobile, which was parked with the motor not running. The keys were in the seat of the vehicle by Dowell’s side. Here, appellant was also found asleep in his vehicle, which was parked with the motor not running. The keys were on the dash of the vehicle. We find that the case at bar is substantially similar to Dowell with the only difference being the location of the keys in the vehicle. Under these circumstances, we do not wish to create a legal distinction between keys found on the seat of a vehicle and keys found on the dash of a vehicle. Therefore, we hold that appellant was not in actual control of his vehicle. Accordingly, we reverse appellant’s conviction for second-offense driving while intoxicated.
For appellant’s second point on appeal, he argues that the trial court erred in finding him guilty of refusal to submit to a breath test when the facts did not show appellant in actual physical control of a motor vehicle. In order to fall under the implied-consent laws, one must operate a motor vehicle or be in actual physical control of a motor vehicle. Ark. Code Ann. § 5-65-202(a) (Repl. 1997). Ark. Code Ann. § 5-65-202(a) provides:
Implied consent.
(а) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.
(Emphasis added.)
The State suggests that Ark. Code Ann. § 5-65-202(a)(3) requires a person to submit to a chemical test if a law enforcement officer has reasonable cause to believe that a person was operating or was in actual physical control of a motor vehicle. We disagree with the State’s interpretation of the statute. We have carefully examined section 202 and find that the excerpt “reasonable cause to believe that the person” modifies and concerns the excerpt “is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.” See State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992). Moreover, we find that the excerpt “while operating or in actual physical control of a motor vehicle” sets forth a condition precedent to a violation of the implied-consent law as set forth in section 202(a)(3). See id.
Because we find that appellant was not operating a motor vehicle or in actual physical control of a motor vehicle, we also must reverse appellant’s conviction for refusal to submit to a breath test.
Reversed and dismissed.
Robbins, C.J., Stroud and Neal, JJ., agree.
Pittman and Meads, JJ., dissent. | [
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LARRY D. VAUGHT, Judge
| Appellant Jefferson-Lincoln County Circuit Court appeals the October 9, 2014, decision of the Director of the Arkansas Department of Workforce Services (Director) finding that it was not exempt from unemployment-insurance-tax liability with respect to Sweet Burroughs and other similarly situated workers working under the same conditions. On appeal, appellant argues that the Director erred in finding that Burroughs was an employee. We affirm.
On May 2, 2014, the Arkansas Department of Workforce Services (Department) issued an unemployment-tax-liability letter to appellant with respect to worker Sweet Burroughs. Appellant appealed the Department’s findings and requested a hearing pursuant to Arkansas Code Annotated section ll-10-308(a) (Repl. 2012). The hearing took place on September 25, 2014.
12At the hearing, Juwana Jackson, the director of the Breaking the Cycle Coordinator for appellant, testified that Burroughs was a mentor through the Breaking the Cycle Program, which was designed to aid in the prevention of juvenile delinquency. Burroughs submitted an auxiliary-probation-officer application to the Jefferson County Juvenile Center on February 2, 2012. In 2013, appellant paid Burroughs $1552.
Jackson testified that she was in charge of the mandatory orientation program, informed the mentors of the confidentiality requirements and what the court did, and oversaw the progress of the mentors. She noted that the mentoring did not take place at the court, but rather in the community, such as a school or the juvenile’s home. Jackson testified that the mentors were not told how, when, or where the mentoring was to be done. The mentors were not required to wear uniforms, not given supplies to perform their job, and not reimbursed for gas or mileage. Outside of the orientation, she stated the program did not provide training, but conducted monthly sessions to inform the mentors of drug trends, new juvenile laws, and community events. The mentors provided the court with a session reporting form if they had contact with the juvenile within that month. The reporting forms were then put in the court files. She added that she did follow up with the mentors when she did not hear from them. Jackson testified that Burroughs had filled out a W-9 when she signed up as a “volunteer mentor” because she was an independent contractor and was provided with a Form 1099 at the end of the year. Jackson stated that the program was a volunteer program, but explained that the mentors were able to receive payment through a grant from the Arkansas Department of Human Services if they chose to do so. Jackson | ¡¡stated that the mentors submitted their request for payment when they turned in the session reporting form.
Dorris Rice, the Special Projects Coordinator for appellant, testified that she spoke with Burroughs about other employment. Rice recalled Burroughs saying that she was a substitute teacher during the same time that she was a mentor in the Breaking the Cycle Program. Dennis Johnson, a senior juvenile officer, testified that he and Burroughs attended the same church. He thought she was a licensed minister and worked with the women and youth ministries at their church. Finally, Roderick Shelby, chief of staff for appellant, testified that the court had an interest in making sure the juveniles were progressing after adjudication if they were placed on probation. He stated that it was the juvenile-probation officer’s responsibility, not the mentor’s, to ensure that the court’s interest was protected.
After considering the evidence, the Director found that appellant had failed to meet its burden of proof to establish any of the three factors set out in Arkansas Code Annotated section ll-10-210(e) (Repl. 2012), and that the appellant’s relationship with Burroughs constituted covered employment pursuant to section 11-10-308, resulting in wages subject to the payment of unemployment-insurance taxes by the appellant. Appellant appeals the Director’s decision to this court pursuant to Ark. Code Ann. § 11 — 10—308(d).
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Barb’s 3-D Demo Serv. v. Dir., 69 Ark. App. 350, 353 — 54, 13 S.W.3d 206, 208 (2000). Substantial evidence is such relevant evidence as a reasonable mind might |4accept as adequate to support a conclusion. Id., 13 S.W.3d at 208. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id., 13 S.W.3d at 208. 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. Id., 13 S.W.3d at 208.
To obtain the exemption contained in section 11 — 10—210(e), the employer must prove each of subsections (e)(1) through (3). Stepherson v. Dir., 49 Ark. App. 52, 54, 895 S.W.2d 950, 951 (1995). When there is sufficient evidence to support a finding that any one of the three requirements is not met, the case must be affirmed. Id., 895 S.W.2d at 951. Section ll-10-210(e) states:
(e) Service performed by an individual for wages shall be deemed to be employment subject to tins 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 the service, both under his or her contract for the performance of service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
Ark. Code Ann. § 11-10-210 (Repl. 2012).
In regard to the third requirement, the Director found that appellant failed to establish that Burroughs was customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed for appellant within the meaning of section 11-10 — 210(e)(3). Appellant contends |Bthat Burroughs was “engaged in the business of mentoring troubled youth.” At the hearing, Johnson testified that he and Burroughs attended the same church, and he thought she was a licensed minister and sometimes worked with the women and youth ministries. Rice recalled Burroughs told her she also was a substitute teacher at the time she was a mentor. Considering the evidence presented, we hold that there was substantial evidence to support the Director’s finding that Burroughs was not customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed for appellant. Because there is sufficient evidence to support a finding that appellant failed to prove the requirement under section 11 — 10—210(e)(3), we need not address the other two requirements. Therefore, we affirm.
Affirmed.
Virden and Glover, JJ., agree.
. Pursuant to section 11-10-308, appellant had the choice to appeal the Director’s decision to the Board of Review or directly to this court, and we apply the same standard of review as if it were appealed from the Board of Review. See W. Land Svcs., Inc., v. Dir., 2012 Ark. App. 161, 2012 WL 559070 (applying same standard of review on appeal from Director’s decision). | [
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PER CURIAM
| tIn 2012, Ralph Pruitt was convicted of two counts of rape pursuant to Arkansas Code Annotated section 5-14-103(a)(3) (Supp. 2011), class Y felonies, and one count of sexual indecency with a minor under Arkansas Code Annotated section 5-14-110(4)(C) (Supp. 2011), a class D felony. He was sentenced to 480 months’ imprisonment on each of the rape charges and 72 months’ imprisonment on the sexual-indecency-with-a-minor charge to be served concurrently. We affirmed. Pruitt v. State, 2013 Ark. 128, 2013 WL 1285165.
Now before us are Pruitt’s pro se petition and supplemental petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an ^extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
Pruitt has appended to his coram-nobis petition the following items which were filed in his case in the United States District Court in 2015: Pruitt’s answer to the State’s response to his petition for writ of habeas corpus; Pruitt’s motion seeking an evidentiary hearing on his habeas petition; Pruitt’s objections to the federal magistrate’s recommendation that his federal habeas petition be dismissed; Pruitt’s answer to the State’s response to his motion for an evidentiary hearing. He has also appended to his coram-nobis petition the following items which were filed in Arkansas state courts: Pruitt’s petition for post-conviction relief pursuant to |sArkansas Rule of Criminal Procedure 37.1 (2011); the order of the trial court dismissing the Rule 37.1 petition on the basis that it was not timely filed; the decision of this court, Pruitt v. State, 2014 Ark. 258, 2014 WL 2465502 (per curiam), rendered May 29, 2014, denying Pruitt’s motion to proceed with an appeal of the Rule 37.1 order on the ground that the Rule 37.1 petition was not timely filed.
Pruitt contends that the items attached to his petition establish that his Rule 37.1 petition had merit, that he was not afforded effective assistance of counsel at trial, that the prosecution withheld material evidence from the defense at his trial, that his ease was not properly adjudicated in state court, which led to the federal court’s denial of his claims raised in his federal court proceedings, and that recent federal court decisions have established that Arkansas postconviction remedies are inadequate to allow a meaningful review of claims of ineffective assistance of counsel. It appears that Pruitt desires this court to comb through the material he has attached to find some ground for a petition for writ of error coram nobis inasmuch as his petition is entirely devoid of any facts to show that there is a ground for the writ.
With respect to Pruitt’s assertions that he was denied effective assistance of counsel and that his Rule 37.1 petition had merit, this court has repeatedly held that ineffective — assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings and that such proceedings are not a substitute for raising ineffective-assistance-of-counsel claims under Rule 37.1. White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288. If there was a ground for postconviction relief available to Pruitt under the Rule, it was his burden to raise it in a timely filed Rule 37.1 petition. When he was denied Rule 37.1 relief in the trial court, it was his burden to effect a timely appeal to this court. A coram-nobis proceeding is not a substitute for raising |4claims of ineffective assistance of counsel under the Rule or for perfecting an appeal from an order that denied Rule 37.1 relief. See State v. Tejedar-Acosta, 2013 Ark. 217, at 14, 427 S.W.3d 673, 681 (declining to expand the grounds for writ of error co-ram nobis to include ineffective — assistance-of-counsel claims).
As to Pruitt’s allegation that our state postconviction remedy is not adequate to raise claims of ineffective assistance of counsel, he cites Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013), in support of his contention that grounds for the writ should be expanded to include ineffective-assistance claims. While we are mindful of the holdings in Trevino and Sasser, neither requires this court to expand the scope of a coram-nobis proceeding to permit a collateral challenge to a judgment of conviction that would otherwise be brought pursuant to Rule 37.1. See Washington v. State, 2014 Ark. 370, 439 S.W.3d 686 (per curiam); see also Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Pruitt has not established any authority under federal law for this court to accept allegations of ineffective-assistance-of-counsel as a ground for the writ. We will not consider an issue if the appellant has failed to cite to any convincing legal authority in support of his argument. Barker v. State, 2010 Ark. 354, at 6, 373 S.W.3d 865, 869.
Turning to Pruitt’s argument that the United States District Court erred in dismissing his habeas petition because his case was not properly adjudicated in state court, any action he desired to take to challenge the federal court decision should have been pursued in the federal court. Moreover, this court will not sort through the material filed in the federal court proceeding to ferret out a possible coram-nobis claim.
IfiThe sole claim raised by Pruitt in his petition to this court that would, if proven, fit within the purview of a coram-nobis proceeding is the contention that the State withheld material evidence from the defense. Suppression of material exculpatory evidence by. the State falls within one of the four categories of coramnobis relief. Isom v. State, 2015 Ark. 225, at 2, 462 S.W.3d 662, 663. When evidence favorable to the defense is wrongfully withheld by the State, it is a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and cause to grant a writ of error coram nobis. Id., 462 S.W.3d at 663 To establish a violation of Brady, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; prejudice must have ensued. Howard, 2012 Ark. 177, at 8, 403 S.W.3d at 44.
Here, Pruitt’s claim must fail because he does not explain what evidence was withheld. The onus is entirely on the petitioner to provide factual support for his claims. Cloird v. State, 357 Ark. 446, 450,182 S.W.3d 477, 479 (2004). As Pruitt has offered no facts on which he bases his conclusory statement that the State withheld evidence, there is no basis stated for the writ. The petitioner who seeks issuance of a writ of error coram nobis must make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts; a bare allegation that a constitutional right has been denied will not suffice. Howard, 2012 Ark. 177, at 19, 403 S.W.3d at 50.
Petition and supplement to petition denied. | [
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BART F. VIRDEN, Judge
_JjOn June 20, 2014, appellant, Tristan Travis, was convicted in the Pulaski County Circuit Court of Class Y felony rape and Class D felony second-degree - battery of then three-year-old K.S. A jury sentenced Travis to thirty-seven' years’ imprisonment in the Arkansas Department of Correction on the rape count, and six years’ imprisonment for the count of second-degree battery. The circuit court ordered that the sentences should run concurrently, which resulted , in an aggregate sentence of thirty-seven years. Travis filed a timely notice of appeal, and- for his sole point on appeal Travis asserts that the circuit court erred in finding that K.S. was competent to testify. We disagree, and we affirm.
|¾1. Facts
The incident from which the charges against Travis stemmed occurred on April 20, 2012, when Travis was babysitting then three-year-old K.S. and her younger brother so that his wife and KS.’s mother could attend a church social function. On June 5, 2014," a pretrial hearing was held' to determine whether K.S., who was five years old at the time of the hearing, was competent to testify. At the hearing, the State asked K.S. if she knew the difference between the truth and a lie:
AttoRney: ... [I]f I told you your blanket was red, is that the truth or is it a lie?
Witness: Lie.
AttoRney: Whyis thatalie?
Witness: Because you are telling not the truth.
AttoRney: Okay. What is the truth?
Witness: That-you’re telling the truth , and you don’t get sent to your room.
Attorney: Okay. But what’s the truth about your blanket?
Witness: That it’s not red. It’s pink.
Attorney: That it’s pink. Okay. All right. And can you promise to tell us the truth?
Witness: Yes.
K.S. was sworn in, "and again asked if she understood the difference between the truth and a lie:
Attorney: All right. So what did you just tell that lady? What did you tell her? What did you just say to her?
Witness: I told- her that I swear to tell the truth.
13Attorney: , Okay. And so can you tell us the truth?
Witness: Uh-huh.
Attorney: What happens if you don’t tell the truth?
Witness: You get in trouble.
On direct examination, K.S. described the events of the evening of April 20, 2012. She testified that Travis put a broken crayon into her pee-pee while she was lying on the living room floor. She testified that he put wire hangers in her pee-pee after he put the crayon inside her and that her mother was not there when it happened. She testified that it hurt and that she bled.
K.S. was then cross-examined. K.S. relayed many of the same facts, but she contradicted herself as questioning became lengthy. When questioned, she explained that her mother left her with Travis at his home where -they watched television, and she colored. She explained that Travis put a crayon in her pee-pee, and that she was lying on a towel in the living boom of his house when it happened. On-further questioning, she testified that she could not remember which room in Travis’s house she was in when he put the crayon inside her. She testified that after he had put the crayon inside her, he put wires'and hangers inside her, and again she testified that it had happened in the living -room. KS. testified that only-Travis had touched her pee-pee that day. She testified that her mother came back after Travis had hurt her. KS. offered contradictory testimony about when and with whom she left the Travis home, and K.S. testified that she recalled speaking to a woman who showed her a drawing of a boy and a girl but that she did not remember talking to a police officer after the incident.'
14Cross-examination continued, and KS. related more facts concerning the events of April 20. As the questioning went on, KS.’s relation of the facts became more contradictory.
The circuit court ruled that KS. was competent to testify because she had the capacity to transmit a reasonable statement of the events to the jury, and be-, cause she had the ability to tell the truth.
The jury trial was held June 18-20, 2014, and KS. testified. On direct examination, KS. told the jury that she could tell the difference between a lie and the truth and promised to tell the truth. Many times during direct examination, KS.’s initial answer was “I don’t know.” However, when asked again, or if the question was rephrased, K.S. was able to relay facts. When asked several times and several different ways, K.S. consistently supplied the information that Travis put a crayon and hangers inside of her pee-pee and that the event occurred at Travis’s home, in his living room. She testified that blood came out of her pee-pee and that it hurt.
KS.’s testimony beea&e more contradictory and less responsivé upon extensive cross-examination.' After responding to the defense that she understood the difference between a lie and the truth and that she promised to tell the truth, the defense asked KS. if she remembered her mother telling her what would happen if she told a lie. KS. responded, “No” and continued to respond “no” to questions from counsel that attempted to ascertain whether she remembered particular events.. The defense argued that KS. was not competent, and the circuit court resolved the issue by stating that KS. was competent, but it was for the jury to decide whether she was credible. Eventually, after more questioning, KS. was nonresponsive and answered “a lie” when asked if she had told the truth or a lie |sabout Travis. The circuit court stated that it had concerns, but still found that KS. was competent to testify and that her inconsistency was a credibility issue for the jury. '
The State called several other witnesses to testify. According to Dr. Andrew Boze-man, the senior pediatric surgeon who examined KS. within hours of the incident, KS.’s injuries in and around her vagina, urethra, and labia caused bleeding and bruising, and it was extremely unlikely that she had caused this trauma to herself because it would have caused “excruciating pain.” Experts from the‘Arkansas State Crime Lab (ASCL) testified that the shorts' and underwear worn by KS. had both KS.’s blood and Travis’s semen on them. There was expert testimony that “within all scientific -certainty” the semen was Travis’s, The forensic-DNA examiner from the ASCL testified that the coat hanger and the pliers submitted to the lab had KS.’s blood on them. The State also in troduced a videotaped statement Travis made to Detective Jeremiah Terrell, admitting that he had inserted a coat, hanger and pliers into KS.’s vagina. In this videotaped statement, Travis claimed that he panicked, and that is why he did not seek medical attention for the child. He stated to Detective Terrell that he could tell it was very painful to K.S. when he inserted the pliers into her vagina to remove the crayon. Travis never offered an explanation of how his. semen got on KS.’s underwear.
At the conclusion of the trial, the jury found Travis guilty of'the charges and sentenced him to a total of thirty-seven years in the Arkansas Department of Correction. This appeal followed.
| BII. Competency of the Child Witness
The question of the competency of a witness is a matter lying within the sound discretion of the circuit court, and in the absence of clear abuse we will not reverse on appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Any witness is presumed to be competent unless proven otherwise. Id; Ark. R. Evid. 601. The party alleging that a witness is incompetent has the burden of persuasion. Clem, supra. We have previously set out the procedure and guidelines for determining the competency of a witness:
To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard.
Holloway v. State, 312 Ark. 306, 314, 849 S.W.2d 473, 477-78 (1993) (citations omitted). We have applied the same presumption and standards in deciding the capacity of a child witness to testify. Id. We further have observed that the evaluation of the circuit court in these cases is particularly important due to its opportunity to. observe the child witness and to assess the child’s intelligence and understanding of the need to tell the truth. Id. Further, as long as the record supports- a circuit court’s finding of a moral awareness of the obligation to tell the truth and an ability to observe, remember,. and relate facts, we will not hold that there has been a manifest error or .abuse of discretion in allowing the testimony. Ward v. State, 2014 Ark. App. 408, at 5, 439 S.W.3d 56, 60. Finally, in determining the competency of a child witness, the trial court will examine the child’s testimony in its entirety and will not rely solely on the preliminary questioning. Id.
In Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003), our supreme court dealt with a similar issue. In Modlin, a seven-year-old witness testified at the murder trial of his father who had killed his mother two years earlier. At the pretriál hearing, the witness offered somewhat garbled testimony, first telling the court that he did not remember what happened ,at the Ramada Inn the night his mother died, but then offering coherent testimony as to the events of that night. When the witness was asked if he understood the oath to tell the truth, he shrugged and said that he did not know what it meant to make an oath and that he not 'did know what would happen if he did not tell the truth. However, he also said thereafter, “I know the difference between right and wrong. If you tell something — when you say something that’s wrong — when you say something that’s wrong, you’ll get in trouble.” Id. at 100,110 S.W.3d at 730. The witness also shook his head “no” when asked if he understood what kind of trouble would result. Our supreme court held that the child witness’s testimony showed “a moral awareness of the. obligation to tell, the truth and an ability to observe, remember and relate facts.” Id. In the present case, KS.’s testimony at both the pretrial hearing and at the trial similarly showed that she understood the importance of telling the truth and could relate facts to the jury-
Travis asserts that because K.S. offered conflicting testimony about the events of April 20, the circuit court erred in finding that she could remember and relate the facts to the jury. However, our court has held that “it is well-settled that it is the job of the jury, as fact finder, to weigh inconsistent evidence and make credibility determinations. Further, a witness’s inconsistent testimony does not render it insufficient as a matter of law.” Warner v. State, 93 Ark. App. 233, 249-50, 218 S.W.3d 330, 339 (2005) (citations omitted). IsThough KS.’s testimony was .inconsistent at times and became more so upon extensive questioning, her testimony, was never incoherent. An example of incoherence is illustrated in a recent case before our court. Ward, 2014 Ark. App. 408, at 5, 439 S.W.3d at 60, where the child witness responded to questions concerning his ability to tell the truth with nonresponsive, nonsensical answers. In Ward, when the witness was asked “what is a lie” he responded “because him think — I tell you that.” When he was asked “can you tell me what a lie is” his answer was, “not again.” The witness testified that the appellant touched his “privates” but could not identify what part of his body that was. Id. In the present case, K.S.’s statements became contradictory after lengthy questioning; however, she never displayed the incoherence of the witness in Ward.
III. Conclusion
KS.’s testimony showed a moral awareness of the obligation to tell the truth and an: ability to observe, remember, and relate facts. We find no abuse of discretion in the circuit court allowing K.S. to testify, and therefore, we affirm.
Affirmed.
Glover and Vaught, JJ., agree. | [
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DAVID M. GLOVER, Judge
hThe sole issue in this appeal is whether the trial court erred in denying appellants’ claim of a. prescriptive easement across appellee’s real property. We affirm.
In 1965, appellant Jewell Kelley acquired real property on the south side of Mount Holly Road in Union County. In 1988, Cliff Swilley purchased the real property immediately to the east of Mrs. Kelley’s property. There was an old log road oh the west side of Mr. Swilley’s property. In 1987, a number of landowners sued Mr, Swilley to enjoin him from blocking, «their access to the road after he placed a gate across the road; the trial, court found that the named landowner-plaintiffs had acquired a private prescriptive easement over the- roadway and that, while Mr. Swilley could leave the gate in place, it should be unlocked |2so that the named plaintiffs could use it. • In 1988, appellee Cindy Williams purchased Mr. Swilley’s. property with knowledge of the 1987 lawsuit; she and her husband (who died in 2001) never closed the gate and, in fact, removed it because it was in disrepair (it was not replaced before Mr. Williams’s death).
In 2005, appellant James Kelley, Jewell Kelley’s son, purchased from .Dorothy Marks eight acres directly south of Mrs. Kelley’s property. In 2008, Mrs. Kelley purchased another thirty-three-acre tract from Wayne King that was immediately to the south and west of her son’s property. The Kelleys used the road on Mrs. Williams’s property to access their later-acquired back properties from 2005 until 2010, at which time Mrs. Williams built a pipe fence down the common property line and placed a locked gate on the road.
We review equity cases de novo on the record and will not reversé a finding of fact by the trial court unless it is clearly erroneous. Dohle v. Duffield, 2012 Ark. App. 217, 396 S.W.3d 780. 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. In reviewing a trial court’s findings; due deference is given -to that court’s superior position to determine witness ■ credibility and the weight to be accorded their testimony, as disputed facts and the determination of credibility of witnesses | ¡¡are within the province of the fact finder. Id.
Appellants argue that none of the persons in their separate chains of title to their properties had sought or obtained permission for their use of the road, and that they now, as a matter of right,' were entitled to have access to the road on Mrs. Williams’s property. We disagree.
In Carson v. County of Drew, 354 Ark. 621, 625-26, 128 S.W.3d 423, 425-26 (2003) (citations omitted), our supreme court held:
A prescriptive ’ easement may be gained by one not in fee possession of the lánd by operation of law in a manner similar to adverse possession. (“Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to land itself (corporeal hereditament) by adverse possession.”) Like adverse possession, “prescriptive easements ... are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of’other persons.” 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.- This court has-said that the statutory period of seven years for adverse possession applies to prescriptive easements. That statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101 (1987). See also Ark. Code Ann. § 18-11-106 (Supp. 1999) (enacted as Act 776 of 1995).
Overt activity on the part of the user is necessary to make clear to the owner of the property that an adverse use and claim are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. '
Pursuant to Carson, the Kelleys were required to show that, for a period of at least seven years, the road had been used adversely to Mrs. Williams’s right, that such use was not | ¿simply permissive, and that Mrs. Williams was on notice that such use was indeed adverse tó her. There was testimony that other persoijs had occasionally used the road to access the-property behind Mrs. Williams’s property for various reasons,, but that evidence was not sufficient to show such use was adverse to Mrs. Williams’s interests. The Kelleys’ use of Mrs. Williams’s driveway did not commence until 2005, when James Kelley purchased the eight acres immediately behind his mother’s property. His use was discontinued in 2010 when Mrs. Williams put up the pipe fence and a locked gate. This amount of time falls short of the seven-year period required to obtain an easement by prescription. Thus, the trial court’s decision to deny appellants a prescriptive easement is not clearly erroneous.
Affirmed.
Whiteaker and Brown, JJ., agree.
. The plaintiffs in that case were Anthony Forest Products Company, J.R. Haney, James Haney, Wade Lee, Mrs. H.W. Meek, James Willett, M.H. Willett, and Timothy Willett.
. Neither the Kelleys nor any of their predecessors in title were parties to the 1987 lawsuit.
. There are discrepancies as to the date Williams denied the Kelleys access. The Kel-leys’ amended petition for injunction asserts that the gate was placed across the road on or about September 30, 2008; the order denying the easement finds that Williams disallowed use in '2008-. However, the testimony from both James Kelley and Cindy Williams was that the pipe fence and the .gate were erected in 2010. | [
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MIKE MURPHY, Judge
1 íAppellant Tara Wallace appeals the Pulaski County Circuit Court order terminating her parental rights to her minor child, D.W. She argues that the State failed to present sufficient evidence supporting the circuit court’s order terminating her parental rights. We affirm.
The Arkansas Department of Human Services (DHS) exercised emergency custody over then two-month-old D.W. on September 22, 2015, upon notice of domestic violence that occurred in the home. On September 19, 2015, police officers responded to a call, where they discovered that Wallace had broken her apartment window to get someone’s attention because D.W.’s father had slapped her while she was holding D.W. The officers noted numerous drugs and paraphernalia around the apartment and 1 ¡.confiscated needles and spoons with drug residue. Wallace stated that she had a history with heroin, but she claimed that she was not using drugs at that time. A drug test revealed otherwise when she tested positive for amphetamine, methamphetamine, benzodiaze-pine, and THC. D.W. was removed from Wallace’s custody due to her inability to supervise, protect, and care for D.W. given Wallace’s substance abuse.
On November 17, 2015, D.W. was adjudicated dependent-neglected based on the finding that D.W.’s parents subjected him to neglect and parental unfitness. The circuit court also found that the child had been subjected to “aggravated circumstances” as defined in the Arkansas Juvenile Code because it was unlikely that services to the family would result in successful reunification within a reasonable period of time.
Seven months into the case, DHS filed its petition to terminate parental rights on April 22, 2016, and the goal of the case was changed to adoption. In June 2016, Wallace hired private counsel who sought a continuance of the termination hearing. As a result, the circuit court converted that hearing to a second permanency-planning hearing and took testimony. The circuit court then set the case for a termination hearing, and DHS filed an amended petition for termination of parental rights. The petition alleged three statutory grounds against Wallace—twelve months out of the home of the custodial parent, subsequent factors, and aggravated circumstances— and that the termination was in D.W.’s best interest. The circuit court held a termination hearing on September 30, 2016.
[⅞At the hearing, Wallace’s continued drug-abuse and'her mental-health issues were the primary focus. Wallace testified that she had not completed inpatient substance-abuse treatment or followed the recommendation in the psychological evaluation. She admitted that she had not maintained a stable home as she had lived in five different locations over the course of the case. She confessed that- the last time she used methamphetamine and mark juana was as recently as June 2, .2016. She passed a drug test five days later, but admitted it was because she had drunk a large amount of green tea to overcome the drug test. She explained that she had attempted rehab three times for substance abuse but had not yet completed a program. Wallace testified that, at the time of the hearing, she was stable on her medications. She stated that she suffers from memory loss due to a previous drug overdose. She recently moved to Rison, Arkansas, to be closer to her nephew.
Dr. George DeRoeck, clinical psychologist, testified as an expert witness. He had performed a psychological evaluation on Wallace. At the time of the evaluation, Wallace indicated to Dr. DeRoeck that she was not stable in her moods and that “they were out of control;” she also admitted to drug use. Dr. DeRoeck identified Wallace as having a “dual-diagnosis issue” composed of bipolar disorder and substance abuse. He explained that some drug-treatment programs insist that the patient not be on medication when they are in treatment; he said “If she was on medication and stable and still failed the substance-abuse treatment, that would indicate that we’re looking at possibly that she may not be able to independently parent at all.” He said an individual needs to be on a therapeutic dose of the medication that he or she can tolerate. However, he had not evaluated her Rsince January 2016, so he was unaware if she was stable on her medications at the time. Arkansas Cares, the first treatment facility Wallace attended, is a dual-diagnosis facility, but she was asked to leave, and Dr. DeRoeck was not sure if Wallace had been, provided the dual-purpose treatment. He also explained drug use could render her medications ineffective. According to his testimony, her mental illness is a chronic condition that will be with her for the rest of her life. He explained that, given that she is on disability, for her mental diagnosis, she would likely have difficulty responding effectively to any future treatment. •
Harrison Williams, Wallace’s social worker, discussed conducting three months of therapy with her. He explained that he thought Wallace had the ability to raise her child, but she had to demonstrate that she was done with drugs and alcohol, which she had failed to do. He illustrated this point when he testified that she was supposed to graduate from Recovery Centers of Arkansas, a drug-rehab facility, but relapsed the'night before her graduation from the program.
Willie Baker, Wallace’s assigned caseworker, further testified to the three failed attempts at drug treatment. He explained that as recently as August 2016, Wallace could not pass a drug test, and that while drug tests go back ninety days and could have overlapped with the previous drug test, .the August test indicated a new drug—cocaine—that did not show up on the previous test. Wallace never, got a sponsor even though she was asked to do so, and he could not foresee any services that could have been offered that had not been offered that might have reunited the child with her. He testified that an | ^intensive parenting class would not help her because she continued to use drugs and. to be unstable.
The circuit court terminated Wallace’s parental rights, finding that doing so was in D.W.’s best interest. In its written order, the court specifically found that
[the mother] has a long history of mental health issues which will be with her for the rest of her life. The mother has not rid herself of her drug problem. The court continues to find that the mother is not credible and that she intentionally misrepresents material facts concerning her situation. The mother admitted that she drank green tea in order to avoid having a positive drug screen. The mother has made no material progress in this case and remains an unfit to [sic] parent this child.... Giving the [mother] 90 more days would not make a significance [sic] difference, nor would giving [her] six months. The mother lacks credibility. The court accepts that perhaps she has some memory problems, but allowing for memory problems, the mother still is not credible.
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App. 131, at 4-5, 456 S.W.3d 383, 386. It is DHS’s burden to prove by clear and convincing evidence that it is in' a child’s best interest to terminate parental rights as well 'as the existence of at least one statutory ground for termination. Id. On appeal, the inquiry is whether the circuit 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 appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. We give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witness.es. Id.
The termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination. Ark. Code Ann. § 9—27—341(b)(3)(B) (Repl. 2015). The best-interest determination must consider the likelihood that the children will, be adopted and the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Spencer v. Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at 5-6, 426 S.W.3d 494, 498. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Id.
Because Wallace has not challenged the court’s decision as to the grounds for termination, we need not address those findings. Rather, the only issue before this court is whether there was sufficient evidence that termination was in D.W.’s best interest. Wallace asserts that the circuit court based its decision to terminate, in large part, on its determination that she would never achieve minimum stability to properly parent because of her mental illness. She seeks reversal of the termination order to be given additional time to demonstrate that therapeutic levels of medication would allow her to parent independently.
In determining the best interest of the children, the court considers factors such as the likelihood of adoption and the potential harm to the health and safety of the child if subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-841(b)(8)(A)(i), (ii) (Repl. 2015). The harm referred to in the statute is “potential” harm; the circuit court is not required to find that actual harm will result or to affirmatively identify a potential ’ harm. Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, at 5, 471 S.W.3d 251, 255. Moreover, evidence on this factor must be viewed in a forward-looking manner and considered in broad terms. Id. In determining potential harm, the court may consider past behavior as a predictor of potential harm that may likely result if the child were returned to the parent’s care and custody. Dowdy v. Ark Dep’t of Human Servs., 2009 Ark. App. 180, at 13, 314 S.W.3d 722, 729.
Here, Wallace does not challenge the finding that D.W. is adoptable, nor'does she dispute that potential harm existed. Instead, Wallace argues that she was not provided with appropriate services to address her mental-health issues and that she needs more time to reach a point at which she will be stable enough to parent her child. However, as the circuit court noted, “[Tjhere remains a substantial question as to whether she has the motivation to quit using drugs.” Considering her past behavior, allowing Wallace more time would likely not be beneficial. At the time of the termination hearing, Wallace’s situation had barely changed. She exhibited a lack of initiative in complying with the case plan, because she never obtained a sponsor, she tested positive for cocaine a.month prior to the hearing, and- she candidly admitted drinking green tea in an effort to defeat drug screens. Notably, throughout the case, Wallace failed to appeal from any of the circuit court’s previous reasonable-efforts findings. Her lack of progress does not warrant additional time for improvement.
The intent of our termination statute is to provide permanency in minor children’s lives in circumstances where returning the children to the family home is contrary to their health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the children’s perspective. Chaffin, 2015 Ark. App. at 7, 471 S.W.3d at 256. The child’s need for permanency and" stability may override the parent’s request for additional time to improve the parent’s circumstances. Id. Parental rights will not be enforced to the detriment of the health and well-being of the child. Christian-Holderfield v. Ark. Dep’t of Human Servs., 2011 Ark. App. 534, at 7-8, 378 S.W.3d 916, 920.
This court is sympathetic to mental illness and the challenges of receiving the proper drug treatment at a dual-diagnosis facility, but in this case, we cannot say more time would have been beneficial and that a mistake has been made by the circuit court. D.W. has been in foster care for twelve of his fifteen months of life; his need for permanency overrides Wallace’s need for more time.
Affirmed.
Virden and Whiteaker, JJ., agree.
. D.W.’s father's parental rights were also terminated as part of the order, but he did not appeal.
. Wallace was diagnosed with bipolar disorder, obsessive-compulsive disorder, and psychosis, | [
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RITAW. GRUBER, Chief Judge
hThe sole issue in this appeal is whether the Benton County Circuit Court had jurisdiction to reconsider its decision dismissing the charges against appellant Danny Schepp and then to set the case for a status hearing in December 2021. The court did not have jurisdiction to reconsider its decision; consequently, we do not have jurisdiction, and we dismiss the appeal.
The relevant facts are that on November 7, 2014, appellant was charged with 20 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Ark. Code Ann. § 5-27-602 (Repl. 2013). On January 20, 2015, appellant moved for a mental evaluation, averring that he suffered from Alzheimer’s disease. The court granted the motion, ordered a mental evaluation, found appellant unfit I p,to proceed in an order entered on May 8, 2015, and committed him to the custody of the Arkansas State Hospital for restorative services. At a hearing conducted on July 15, 2016, the court found that appellant was not fit to proceed, that he was unlikely to be restored due to his neurocognitive disorder, and that there was no evidence that he was a danger to himself or others. The court then ordered that the case against appellant be dismissed and that he be released from custody. On July 18, 2016, the court entered an order consistent with this ruling, finding that appellant was not fit to proceed, dismissing the case, and releasing him from custody.
On August 15, 2016, the court entered an order setting a “Hearing on Motion” scheduled for September 29, 2016. It did not otherwise identify the motion, and no written pleading was filed in the case. At a hearing on September 29, 2016, the following colloquy occurred:
The Court: All right, on Mr. Schepp if I can recall what happened was ... the Court had made a ruling on the record but has not filed a formal order on Mr. Schepp. I believe I had told the prosecutor’s office that I would wait and file the formal order until the prosecutor had an opportunity to review it, the case law, to see what the case law said about whether the Court could' legally dismiss the case after finding that Mr. Schepp was not a violent person to either threaten himself or others and that he could not be restored because the diagnosis is that Mr. Schepp has Alzheimer’s. That’s my recollection.
The Court: Okay. All right, so with that being said, Mr. Hall, the State is basically asking the Court to reconsider its ruling that it has not formally filed. And does the State want to be heard? Prosecutor: Your Honor, I think what you’re stating is correct. .
IsThe Court: All right, Mr. Hall.
Defense: Your Honor, if we want to have some sort of hearing on this, that’s fine. Fine.
The Court: Well, it’s not we, it’s whether you want to have a hearing. I can make a decision. What do you want to do?
Defense: I mean, we’re not going to agree that the Court couldn’t do what it already did.
The Court: Okay.
Defense: So I think a hearing would be appropriate.
The court set a hearing for December 1, 2016.
At the hearing on December 1, 2016, the court stated that “the State has asked the Court to reconsider its motion to dismiss.” Appellant objected, asserting that the State had not filed a motion and that more than 30 days had elapsed since the court had entered the dismissal order. The court then granted the State’s motion to reconsider and set the case for a status hearing on December 13, 2021. The court entered an order memorializing its rulings on December 6, 2016. Appellant filed an appeal from the December 6, 2016, order.
The parties agree that the court’s dismissal of the case was error. Arkansas Code Annotated section: 5-2-310 provides that if a court determines that a defendant “lacks fitness to proceed, the proceeding against him or her shall be suspended” until restoration of fitness. Ark. Code Ann. § 5—2—310(a)(1)(A) (Repl, 2013). The statute authorizes a circuit court to dismiss criminal charges pending against a defendant who has previously been 14found unfit to proceed “if the court, determines that the defendant has regained fitness to proceed” and “the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would -be unjust to resume the criminal proceeding[.]” Ark. Code Ann. § 5-2-310(c) (Repl. 2013); see also State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690 (holding this statute does not give a circuit court authority to dismiss criminal charges against an unfit defendant).
Despite acknowledging that the order of dismissal was error, appellant argues that the circuit court had no jurisdiction to reconsider this order. He contends that the State did not file an appeal, a motion pursuant to Rule 33.3 of the Arkansas Rules of Criminal Procedure, or any other written motion to reconsider within thirty days' of entry of the order and that the circuit court lost jurisdiction to do anything on August .18, 2016, thirty-one days after its order had been entered. Accordingly, he argues, the circuit court had no jurisdiction to enter its order essentially reinstating the case on December 6,2016.
We agree with appellant. The court entered its order dismissing the case on July 18, 2016. The State’s remedy was to appeal from the order. State v. Thomas, supra (holding State’s appeal of erroneous decision under Ark. Code Ann. § 5-2-310 was appealable pursuant to Ark. R; App. P.—Crim. 3). Once the State failed to pursue this remedy by filing |Ban appeal within 30 days of the dismissal, the circuit court lost jurisdiction. Therefore, the court’s order entered on December 6, 2016, reconsidering its dismissal, reinstating the case, and setting a status hearing is a nullity. And when a circuit court lacks jurisdiction, we do not acquire jurisdiction on appeal. C.H. v. State, 2010 Ark. 279, at 15, 365 S.W.3d 879, 886; Jackson v. State, 2010 Ark. 157, at 4, 2010 WL 1366994; and Thomas v. State, 345 Ark. 236, 46 S.W.3d 818 (2001).
Appeal dismissed.
Virden and Harrison, JJ., agree.
. Rule 33,3 authorizes a person “convicted of either a felony or misdemeanor” to file a motion for new trial “or any other application for relief” within thirty days after the date of entry of judgment. Ark. R. Crim. P. 33.3(a), (b) (2017). See Thomas v. State, 345 Ark. 236, 45 S.W.3d 818 (2001) (holding that Rule 33.3 applies only when a person is “convicted of a felony or misdemeanor" and not to a circuit court’s order transferring a criminal matter to juvenile court). | [
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N. MARK KLAPPENBACH, Judge
| Appellants appeal from the Grant County Circuit Court’s order granting summary judgment to appellees on appellants’ negligence suit. Appellants contend that material questions of fact remain on the issue of whether the alleged negligence of appellees was a proximate cause of the automobile accident. We reverse and remand.
Appellants, Morgan Taylor Barnett and her parents, Alton Darren Barnett and Karen Barnett, filed suit against Damon Eric Cleghorn and his employer, Purcell Tire & Rubber ^Company, for damages arising out of an automobile accident. On August 17, 2011,. Morgan Barnett was driving a Chevrolet Cruze east on Highway 270 and had stopped to wait on westbound traffic to pass in order to make a left turn onto Keg Mill Road. A Dodge Ram pickup truck driven by Cleghorn and owned by Purcell was traveling behind Barnett east on Highway 270 with large truck tires in the bed of the truck. Dustin Golden was driving a Chevrolet Silverado behind Cleg-horn in the same direction. It is undisputed that Cleghorn maneuvered around Barnett on the right shoulder and did not collide with her vehicle. Golden, however, collided with the rear bumper of Barnett’s car and also with the rear of Cleghorn’s truck. Barnett’s car was then pushed into oncoming traffic and was struck by another vehicle. Golden’s truck struck a second vehicle traveling westbound.
Appellants alleged in their complaint that Cleghorn was traveling at a high rate of speed and that he negligently failed to keep a proper lookout and notice that. Barnett had slowed to make a turn. They claimed that his illegal attempt to pass Barnett on the right shoulder caused the chain reaction of collisions. Appellants claimed that Cleghorn’s and Purcell’s negligence was the .proximate cause of their injuries and damages and that Purcell .was liable under the doctrine .of respondeat superior.
Appellees filed a motion and am amended motion for summary judgment alleging that IsCleghorn’s actions were not the proximate cause of appellants’ damages. Appellees contended that Cleghorn did not strike Barnett’s vehicle and that an accident reconstructionist had determined that Golden had sufficient notice to react to Cleghorn’s slowing and passing Barnett. The affidavit of R. Torrey Roberts, the professional engineer retained by appel-lees to perform an accident-reconstruction analysis, stated that Golden was still traveling approximately ‘ 57 mph when he hit Barnett’s vehicle and that Cleghorn was traveling approximately 20 mph when he was struck by' Golden’s vehicle. Roberts concluded that Golden would have had the opportunity to observe Cleghorn slowing to a stop and driving around Barnett for a minimum of 5.5 seconds before impacting Barnett and that this was sufficient time for an attentive driver to react and avoid the accident. Roberts’s conclusions were based in part on Cleghorn’s deposition testimony that Barnett had stopped abruptly in front of him; that he was not sure he had room to stop behind her so he steered to the right; that he came to a complete stop behind and to the right of Barnett; and that he then eased around her.
Appellees’ amended motion included a supplemental report from Roberts prepared after appellees’ attorney had provided Roberts with evidence that Cleghorn may not have come to a stop before driving around Barnett. This evidence included a Purcell accident report in which Cleg-horn wrote that he was not able to completely stop, so he slowed to | ¿approximately 20 mph and moved to the shoulder. Based on this informationi Roberts opined.that, instead of 5,5 seconds, Golden would have had the opportunity to observe Cleghorn slowing and driving around Barnett for a minimum of 3.2 to 3.8 seconds, which was still sufficient time for an alert driver to avoid the accident.
Appellants responded that Cleghorn had lied under oath when he repeatedly testified in his deposition that he came to a complete stop before driving around Barnett. Given Cleghorn’s contradictory accounts, appellants claimed that any observations to be drawn from his actions were genuine issues of material fact. Appellants also argued that the motion for summary judgment/ was premature because discovery was pending, and they would be retaining their own accident reconstructionist. Appellees replied that, due to Golden’s lack of recollection of the accident, there Was no admissible evidence that the likelihood of Golden hitting Barnett was increased or caused by any action of Cleg-horn’s.
Appellants filed a sur-reply, attaching a letter of preliminary findings from Chuck Atkinson, an accident reconstructionist. Atkinson opined that Cleghorn’s evasive maneuver to pass the stopped car without sufficient warning of his intention did not provide Golden sufficient time and distance to avoid the collision. Appellants also detailed ongoing discovery and claimed that their discovery requests had been- ignored. Appellees filed a motion to strike the sur- reply, contending that it was too late to submit supplemental supporting | ¡materials without leave of the court. Following a hearing, the circuit court granted summary judgment in favor of appellees. Appellants filed a motion for reconsideration, which was deemed denied, and this appeal followed.
The law is well settled that 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. Davis v. Schneider Nat’l, Inc., 2013 Ark. App. 737, 431 S.W.3d 321. Once the 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. Id. 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. Id. 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. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id.
Appellants contend that factual issues remain as to whether Cleghorn proximately caused the accident by following too closely or by driving inattentively or too fast and thereby created the danger that caused Golden to strike Barnett. Pointing to their expert’s report, appellants claim that a jury could find that Cleghorn’s truck obliterated Golden’s view |fiof Barnett’s car and that Cleghorn’s last-minute evasive action left insufficient time for Golden to stop and avoid a collision. To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant’s actions were a proximate cause of those damages. Davis, supra. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Pollard v. Union Pac. R.R. Co., 75 Ark. App. 75, 54 S.W.3d 559 (2001). Proximate causation becomes a question of law only if reasonable minds could not differ. Id.
Appellants argue that even if Golden was also negligent, this does not absolve Cleghorn of liability unless Golden’s actions were an independent, intervening cause. This court has stated that
proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability, if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts or omission constituting the primary negligence.
Pollard, 75 Ark. App. at 79, 54 S.W.3d at 562-63 (quoting Shannon v. Wilson, 329 Ark. 143 157, 947 S.W.2d 349, 356 (1997)) (internal citations omitted). An intervening act that is a normal response to the stimulus of a situation created by the actor’s negligent conduct is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about. Id. (citing Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949)). Appellants claim that the questions of whether Cleg-horn’s actions were concurrently negligent and a proximate cause of the accident were issues for the jury to decide.
We agree with appellants that a question of fact remains regarding whether Golden’s actions were an independent, intervening cause or whether they were a normal response to the situation created by Cleghorn’s negligence. The report of appellants’ expert, Atkinson, stated that the total stopping distance for Golden’s truck was 275 feet, as opposed to the braking distance of 150 feet cited by appel-lees’ expert, Roberts. Atkinson opined that Golden would have been 225 feet from the collision when he could first see Barnett stopped attempting a left turn. Atkinson said that there were indications that Cleg-horn did not appreciate Barnett’s stopped car until he had to make an evasive maneuver to avoid her, and this created the situation causing Golden to have insufficient time to avoid the collision. The fact that Cleghorn successfully maneuvered around Barnett is not determinative given the evidence that he failed to stop in the normal course of traffic and that his actions, according to one expert, caused Golden to have insufficient time to react.
As the parties note, neither Atkinson’s report nor Roberts’s supplemental report was submitted under oath. All evidence submitted in the course of summary-judgment | ^proceedings must be under oath. Hadder v. Heritage Hill Manor, Inc., 2016 Ark. App. 303, 495 S.W.3d 628. However, neither party challenged the submission of such proof on this basis below. See Thompson v. Tyson Foods, Inc., 2015 Ark. App. 424, 467 S.W.3d 746. The circuit court did not specify a basis for its ruling in the order, but the order does state that the court considered all the exhibits to the amended motion for summary judgment and sur-reply. Although appellees did argue below that appellants’ expert’s report was untimely, they did not obtain a ruling on this argument. It is clear from the order and from the circuit court’s remarks at the hearing that the court considered appellants’ sur-reply and attached exhibits despite appellees’ contention that they were untimely.
We conclude that the evidence presented to the circuit court demonstrated the existence of a material issue of fact regarding causation. Summary judgment is not designed for assessing the probative strength of conflicting proof or expert opinions. Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008). Rather, that process is correctly done by the trier of fact after a-trial on the merits. Id. We hold, therefore, that the circuit court erred in granting summary judgment. Due to our holding, it is unnecessary to address appellants’ arguments that summary judgment should have been denied because discovery was ongoing or that appellants’ motion for reconsideration should have been granted.
Reversed and remanded; motion to strike denied.
Abramson, Virden, Gladwin, and Whiteaker, JJ., agree.
Brown, J., dissents.
. Appellants also named as defendants Purcell Tire and Service Center and Purcell Tire Company of Arkansas, as well as five John Does, alleged to be individuals or employees of Purcell Tire Company. Appellees alleged that Purcell Tire and Service Center and Purcell Tire Company of Arkansas were not legal entities in existence, but they remained on the case caption throughout the case,
. Cleghorn testified in his deposition that he would change this prior statement to say that he was not sure if he could stop fast enough but he did, in fact, come to a stop.
. Appellees’ motion to strike a portion of appellants’ reply brief on this subject is denied. | [
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John F. Stroud, Jr., Judge.
A jury found appellant, Frank Bung, Jr., guilty of residential burglary and rape. He was sentenced as an habitual offender to twenty years’ imprisonment on the residential burglary charge and forty years’ imprisonment on the rape charge. The court ordered that the sentences be served consecutively.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to withdraw on grounds that the appeal is without merit. The clerk of this court furnished appellant with a copy of his counsel’s brief and notified him of his right to file a pro se brief within thirty days, which he has done. In response, the State has also filed a brief.
Appellant’s counsel’s motion was accompanied by an abstract and brief purportedly referring to everything in the record that might arguably support an appeal. Six defense objections or motions were listed to which there were adverse rulings, and we find that all rulings adverse to appellant were addressed by his counsel. There were no errors with respect to any of them. Appellant’s pro se brief raised several issues, many of which duplicated those raised by his counsel; the remaining ones either were not preserved for appeal or involved alleged inconsistencies in testimony that were for the jury to resolve, not this court. The State’s brief, which summarizes appellant’s issues as four basic arguments, agrees that the appeal has no merit.
I.
One of the adverse rulings was the trial court’s denial of appellant’s motion for a directed verdict. The basis for the motion was twofold: 1) that appellant had not been adequately identified as the perpetrator of the rape and that consequently the remaining evidence against him, the fingerprint and the DNA, was not sufficient to connect him to the offenses charged; and 2) that based on the evidence presented, no reasonable jury could find him guilty beyond a reasonable doubt of either rape or burglary. We find no error.
A motion for a directed verdict is a challenge to the sufficiency of the evidence, the test for which is whether there is substantial evidence to support a verdict, viewing the evidence in the light most favorable to the appellee. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). Evidence is sufficient to support a conviction if the evidence is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The fact that evidence is circumstantial does not render it insubstantial. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). Here, appellant’s fingerprint was found on a fan that was located inside the victim’s house. Furthermore, the DNA that was recovered from semen in the victim’s underwear matched that of appellant. This evidence was sufficient to connect appellant to the residential burglary and rape and to support the jury’s conclusion that appellant had committed both offenses.
II.
Appellant objected to the composition of the jury venire based solely upon the disproportionate number of African-American jurors present because only four of the thirty-nine potential jurors were African-American. He moved to dismiss the panel. The motion was denied. After the jury was chosen, the court noted for the record that the State’s only strike was with respect to a Caucasian female and that two of the four African-Americans summoned were seated in the jury. The trial court considered the motion again, in light of the final makeup of the jury panel, and again denied it. The trial court did not err in doing so.
The selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a trial by jury; however, there is no requirement that the petit jury actually chosen must mirror the community and reflect the various distinctive groups in the population. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). It is the State’s purposeful or deliberate denial to blacks, on account of race, of participation in the administration of justice by selection for jury service that violates the equal protection clause. Id. Appellant did not allege any impropriety in the selection of the jury venire, just the disproportionate numbers. That showing alone does not prove a case of racial discrimination. Id.
III.
Appellant attempted to impeach the victim’s testimony by using a submission sheet prepared by Detective Tina Smith that summarized the evidence in the case. The document contained a notation that the victim had earlier told police officers that the man who raped her was named “Frank,” whereas the victim testified at trial that the man who raped her told her his name was “Freddie.” The court refused to allow appellant to impeach the victim with a summary of evidence prepared by someone else based on reports from other officers, not the victim; however, the trial court allowed appellant to establish through questioning of Detective Smith that the victim had told some of the patrol officers that the perpetrator’s name was Frank, rather than Fred die. Thus, the jury was presented -with the evidence of a prior inconsistent statement made by the victim, and if there was any error in refusing to allow the submission sheet for that purpose, which we do not hold, it was thereby rendered harmless.
Moreover, the trial court allowed appellant to use the submission sheet to refresh the victim’s memory, but refused to allow the victim to read the statement aloud. There was no error in the refusal. A prior inconsistent statement may not be quoted into evidence as part of the impeachment process. Williams v. State, 55 Ark. App. 156, 934 S.W.2d 931 (1996).
IV.
Appellant objected to the State’s asking Mr. Kermit Channel, a supervisor in the DNA section of the State’s crime lab, about the statistical probability of finding the DNA profile he established from appellant’? blood in the general population. He argued that Channel had not been qualified as a statistician. Appellant renewed the objection after the State had Channel lay a foundation for the testimony. The trial court overruled the objection and did not err in doing so. Our supreme court has held that in DNA profiling the expert need only show that he properly performed a rehable methodology, Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996), and that challenges to the expert’s conclusions are to be made by cross-examination of the expert and the presentation of experts by the defense. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996). Appellant did not challenge the expert’s methods, nor did he call his own experts to challenge the State’s expert’s results. Also, as noted by appellant’s counsel’s brief, the defense in this case was that the sex was consensual. Consequently, the presence of appellant’s semen was not really at issue.
V.
During its closing argument on rebuttal, the State challenged an assertion the defense had made in its closing argument, i.e., that Detective Smith testified that one of the officers was told that the perpetrator’s name was Frank, arguing that the informa tion was not in evidence. Appellant objected, asking the court to instruct the jury that the information was in evidence. The court declined to do so, explaining that it could not' comment .on the evidence. The court was correct because it is prohibited from doing so by the Arkansas Constitution, article 7, section 23. It is reversible error for a judge to express an opinion concerning a fact in the presence of the jury. Breeden v. State, 270 Ark. 90, 603 S.W.2d 459 (1980). Moreover, the jury was instructed that any remarks of counsel having no basis in the evidence were to be disregarded.
VI.
The remaining adverse decision had to do with appellant’s habitual-offender status. Appellant objected to the admissibility of State Exhibit 10, a certified copy of information from the circuit court files of St. Francis County, Arkansas, showing a conviction for “Frank King.” There was no error in this regard because Arkansas Code Annotated section 5-4-504(1) (1993) provides that a previous conviction may be proved by a certified copy of the record of the previous conviction.
Appellant’s objection also encompassed a challenge as to whether State Exhibit 10 established that it was in reference to the same “Frank King” as appellant. The court determined that the exhibit made a prima facie case but invited appellant’s counsel to controvert that finding before the jury, which was not done. Therefore this issue was not preserved, a fact acknowledged by appellant’s counsel in his brief.
Finally, although not raised by appellant, the trial court raised the issue of whether a suspended imposition of sentence with probation constituted a “conviction” since the probation had not been revoked. The court concluded that it was sufficient to show a prior finding of guilt for habitual-offender purposes. The court was correct.
Suspended sentences are still “convictions” within the meaning of the habitual-offender statute. Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989); Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978). The statute does not require that the defend ant has previously been sentenced to serve a jail sentence; it is enough that he has been found guilty and put on probation. Campbell v. State, 264 Ark. 575, 572 S.W.2d 845 (1978). Here, the appellant had pled guilty in the St. Francis County case, and the court suspended imposition of sentence, placing him on probation for five years. The five years had not run at the time of the sentencing in the instant case, and the probation had not been revoked.
Appellant’s pro se brief lists nine “issues of law,” the first six of which are addressed in appellant’s counsel’s brief and previously discussed in this opinion. The remaining issues were either not preserved for appeal, Dickerson v. State, 51 Ark. App. 64, 909 S.W.2d 653 (1995), or they involved alleged inconsistencies in testimony that were for the jury to resolve, not this court, Larue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991).
From our review of the record and the briefs presented to us, we find that there was compliance with Rule 4-3(j) and that the appeal is without merit. Accordingly, we grant counsel’s motion to withdraw and affirm the judgment of conviction.
Affirmed.
Jennings and Neal, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
| Appellants Ida King and Kenneth Caldwell (“King and Caldwell”) appeal a Pulaski County Circuit Court order dismissing their complaint for - ejectment against appellees Leslie Jackson and Karen Jackson. Because it cannot be determined whether the trial court- found that King and Caldwell failed in their-burden of proving a prima facie case for ejectment or whether the trial court improperly failed to shift the. burden of proof to the Jack-sons upon a showing of prima facie evidence by King and Caldwell, we reverse and remand.
12This appeal involves a dispute over entitlement to possession of real estate. The real estate in question was purchased by Elbert, Caldwell and. his wife in 1958 by warranty deed. The deed more particularly described the property as follows:
All of Tract 4 and all of Tract 3, Except that part of Said Tract 3 which lies North of Upper Hot Springs Highway, in MARION ACRES ADDITION to Little Rock, Arkansas, subject to an. easement 20 ft in width along the East side thereof for road right-of-way.[ ]
In 1995, Elbert Caldwell entered-into some form of a land transaction with the Jacksons. The nature of the transaction is at the heart of the current dispute. King and Caldwell contend that the transaction was a lease. The Jacksons contend that the transaction was a sale of approximately three acres. It. is undisputed that the Jacksons took possession of approximately three of the six acres purportedly conveyed to Elbert Caldwell .in 1958. They placed a manufactured home on the property. When the manufactured home burned down in 1997, the Jacksons constructed a 1400-square-foot home on the property over the next ten to twelve years.
In 2008, King and Caldwell obtained two deeds to the property in question. The first was a warranty deed dated May 5, 2008, filed of record in the office of the Recorder of Pulaski County, Arkansas, as Instrument No. 2008030575. The second was a correction Rdeed dated August 6, 2008. This correction deed purportedly corrects some error in the May 5, 2008 warranty deed.
Elbert Caldwell died in ’2009. In October 2010, King and Caldwell sent the Jack-sons a letter to vacate the property. The Jacksons did not respond to the letter or vacate the property.
In January 2011, King and Caldwell filed a complaint against the Jacksons for trespass and ejectment in the Pulaski County Circuit Court. In their complaint, they alleged ownership of the subject property pursuant to the correction deed. King and Caldwell then alleged in their complaint that the Jacksons had entered-into a verbal ten-year lease agreement with Elbert Caldwell and that the agree-meht contained an option to buy the property for-' $6,000.. King- and Caldwell claimed that the- lease expired in 2006 without the Jacksons renewing the lease or paying any sums toward the lease. They further.-alleged that the Jacksons built a permanent dwelling on the property without Elbert Caldwell’s written permission. Finally, they alleged that they had rescinded any permissive use of the property by virtue of an October 21, 2010 letter and that the Jacksons had refused to vacate the property. ■ '
The Jacksons answered the complaint, denying that they had entered into a ten-year lease with Elbert Caldwell. Instead, they asserted that _ they had entered' into an agreement to purchase the land “described in the complaint” for $6,000 and that they completed the purchase of the property on November 8, 1996, when they paid Elbert Caldwell the balance owed on the property of''$4,550. The Jacksons claimed that Elbert Caldwell never provided 14them with a deed to the iand because he could not afford to have a survey conducted. ' The Jacksons admitted building a home on the' property after the manufactured home had burned, but asserted that Elbert Caldwell was well aware of the construction and had ‘visited ‘ the site to observe' the progress. The Jacksons stated that they began to pay the taxes on the property in 1996, but they paid Elbert Caldwell rather than the Pulaski County Treasurer because the entire six-acre parcel was still in Elbert Caldwell’s name. Finally, they claimed that Elbert Caldwell deeded the property to King and Caldwell because he was afraid the property would get caught up in a potential lawsuit, but that Elbert Caldwell assured them that King and Caldwell would have the property surveyed and would convey clear -title to them. • . • . *■ .
The dispute between the parties' proceeded to a bench trial. At the trial, both King and Caldwell testified and presented evidence to the court. They both claimed obtaining ownership to the property from their parents pursuant to the correction deed. King and Caldwell' claimed that they had paid the property taxes since obtaining title. Both denied that the Jack-sons had ever paid any property taxes or that they had received any rent from the Jacksons. They admitted that the Jack-sons had been in possession of some of the property, approximately three acres, but contended that this possession was because of a ten-year lease,that had since expired. They demanded that the Jack-sons be ejected.
In response, both Leslie and Karen Jackson testified and presented, evidence. They both testified that they had purchased approximately three acres from Elbert Caldwell and had been in possession of the property since 1995. They admitted that they did not have a deed to the property, but introduced a handwritten receipt purportedly signed by Elbert Caldwell |fias proof of payment. The receipt noted the date of the transaction, the address of the property “20427 Col. ’ Glenn Road, Little Rock, Ar 72210,” and the payment made of $4,550 received from “Leslie and Karen Jackson” for “Balance on land — 3 acres.” The Jacksons contended that this payment was the final installment of the purchase price of $6,000. In addition to paying the purchase price, the Jacksons presented evidence that they paid the property taxes directly to Elbert Caldwell because he still had the deed for the entire 6-acre tract, and that they built their 1400-square-foot house on the property after the fire had destroyed their initial manufactured home. They both reported that Elbert Caldwell was well aware of the home construction and voiced no objections.
After hearing the evidence, the trial court issued its’ final written order, concluding that King and Caldwell “failed to show that they are entitled to have the [Jacksons] ejected from the property and dismissing their complaint for ejectment. King and Caldwell appeal this order, arguing (1) that the trial court failed to shift the burden of proof to the Jacksons once a prima facie showing of entitlement to possession was presented and (2) that there was insufficient evidence presented by the Jacksons to overcome their title to the property.
In order to sustain an action in ejectment, the plaintiff must establish that he- is legally entitled to possession of the property. Ark. Code Ann. § 18-60-201 (Repl, 2003). The plaintiff may show entitlement to possession by proving that he has. title thereto or the right of possession thereof, and that the defendant is in possession. Ark. Code Ann. § 18-60-206 | (¡(Repl. 2003). Where a plaintiff makes a prima facie showing that he is entitled to possession of the property, either by holding title or holding a right of possession, the burden then shifts to the. defendant to defeat the legal title. See Buckhannan v. Nash, 216 F.Supp. 843, 846 (E.D. Ark. 1963) (citing Foster v. Elledge, 106 Ark. 342, 153 S.W. 819 (1913) and Weaver v. Rush, 62 Ark. 51, 34 S.W. 256 (1896)). However, a plaintiff must succeed, if at all, on the strength of his own title and cannot depend on the weakness of the defendant’s title. Dorey v. McCoy, 246 Ark. 1244, 1248, 442 S.W.2d 202, 204 (1969); Knight v. Rogers, 202 Ark. 590, 151 S.W.2d 669 (1941); Bunch v. Johnson, 138 Ark. 396, 211 S.W. 551 (1919).
Here, it is unclear on what basis the trial court premised its dismissal— want of prima facie evidence of title, want of prima facie evidence of possession, or proof by the Jacksons of a superior right of possession or title. The written order simply concludes that King arid Caldwell failed to prove they were entitled to have the Jacksons ejected from the property without specification. When a written order does not specify the basis for. the trial court’s conclusion, the appellate court may utilize the oral pronouncement of the trial court to determine the intent behind its written orders. See Ward v. Ark. Dep’t of Human Servs., 2014 Ark. App. 491, 2014 WL 4748297. However, looking at the oral pronouncement of the trial court does not make the basis for the written order any clearer. King and Caldwell had the burden of proving, at a minimum, a prima facie entitlement to ejectment by' either title or right of possession. They presented evidence of title by introduction of the correction deed. In its oral pronouncement, the court noted that the correction deed did not indicate an aggregate total acreage. However, it is not clear whethér the' court was actually making a ruling concerning Rprima facie proof of title. What the court did say was that King and Caldwell had faded to prove their right to possess the three acres that was the subject of the ejectment action, expressing doubts that the property was the subject of a lease agreement as opposed to having been Sold; • However, again, it is not clear if this was a ruling concerning the prima facie proof of title or an improper failure to shift the burden of proof .to, the Jack-sons as King and Caldwell allege. Therefore, we reverse and remand for a determination of whether King and- Caldwell presented a prima facie showing of entitlement to possession of the.property and, if so, whether the Jacksons presented sufficient evidence to defeat legal title.
Reversed and remanded with instructions. - ■
Gladwin, C.J., and Hoofman, J., agree.
. This is the third time this case has been before us. The first two times, the appeal was dismissed for lack of a final order. King v. Jackson, 2014 Ark. App. 488, 2014 WL 4748473 (failure to dispose of outstanding claim for trespass); King v. Jackson, 2013 Ark. App. 264, 2013 WL 1775731 (voluntary dismissal of trespass claim- without prejudice not sufficient). After the second appeal was dismissed for lack of a final order, King and Caldwell entered a voluntary dismissal of their trespass claim with prejudice and stated in their notice, of appeal that they were abandoning any pending and unresolved claims. The order is now final and appealable.
. Elbert Caldwell is the father of-the appellants, King and Caldwell; .
; The description of the property in the warranty deed gives no indication as to the amount of property being conveyed. The testimony before the court was that it consisted of approximately six acres.
. ‘ This Warranty deed was referenced in the correction deed but was never introduced as evidence.
. They claim to have made two payments on the property. The receipt produced at trial showed the final payment on the property, and the first receipt was destroyed in the manufactured-home fire. | [
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CLIFF HOOFMAN, Judge
,LAppellant Jori Enterprises, LLC, d/b/a Club Z (“Club Z”), appeals from the Arkansas Board of Review’s (“Board”) decision finding that it is required to pay unemployment insurance taxes for the services performed by its tutors. On appeal, Club Z argues that the Board’s decision is not supported by substantial evidence. We affirm.
On February 21, 2014, the Arkansas Department of Workforce Services (“Department”) issued an 'unemployment-tax determination letter of liability to Club Z, concluding that Club Z’stutors were its employees for purposes of unemployment-insurance taxes. Dn March 11, 2014, Club Z filed a request for a redetermination of coverage by the Department director (“Director”) pursuant to Arkansas Code Annotated section 11-10-308 (Supp. 2013), and the hearing was held on October 1, 2014.
At the hearing, Joanne Campbell, the owner of Club Z, testified that Club Z is an in-home' tutoring company that matches tutors with clients who ’ need tutoring. When a client j2cpntacts Club Z, Campbell interviews the client to assess their specific needs, such as the particular subject for which the tutoring is needed and the client’s schedule. The clients sign a contract with Club 'Z indicating whether they, need a certain number of hours of tutoring or are in need' of ongoing tutoring each week. She then refers to Club Z’s database of tutors to determine which tutor is a good match for that particular'client. Campbell notifies the tutor about the potential client, and the tutor decides whether or not to accept the client as his or her student. If the tutor agrees to accept the client, the tutor then communicates with the client to arrange the 'day, time, and location of the tutoring session. Campbell indicated that Club Z has a standard range of rates that it charges, although the tutor or the client can sometimes negotiate a different rate with the company depending on the specifics of the assignment. After tutoring services are rendered, the tutor prepares and submits an invoice to Club Z, who then bills the client. Once payment is received from the client, Club Z retains fifty-five percent of the hourly fee and remits to the tutor the remaining forty-five percent. Campbell explained that this is not a one-time referral fee; instead, Club Z retains its percentage fee for each hour that is billed pursuant to its client agreements.
Campbell testified that each of Club Z’s tutors is required to sign an “Independent Tutor Agreement.” As part of this agreement, the tutor completes and signs a tutor profile, agrees to submit to a background investigation, and agrees to inform Club Z of any health-status changes. The agreement also contains a non-competition clause, which prohibits tutors from soliciting, diverting, or attempting to divert any of Club Z’s clients or business opportunities to themselves or to a competitor. Tutors are further prohibited from | ^contracting with a Club Z client for a period'of one year after the termination of the agreement, or alternatively,' they are required to pay liquidated damagés in the amount of $2,500. Club Z also reserves the right to cancel assignments and to immediately terminate the agreement if a client is unsatisfied.
According to Campbell, Club Z itself does not offer tutoring services but instead operates as a referral or matching service. She indicated that Club Z’s tutors typically work full time as licensed teachers or other professionals and that their work for Club Z provides supplemental income. Campbell admitted that the website for her Northwest Arkansas franchise of Club Z states that it “proudly offers one-on-one in-home tutoring for all subjects, pre-K to adult” and that some people could believe from this advertisement that Club Z was a tutoring service.
Ashley Henderson testified that she is a “private contractor” or tutor for Club Z. She indicated that she is a postgraduate student and that her tutoring jobs supple-, ment the income she receives as a research assistant. Henderson stated that she decides whether to accept a particular client and that she contacts the client directly to make arrangements for the time and location of the tutoring sessions. In order to receive payment for her tutoring services, she prepares an invoice with the number of hours worked for each client and submits it to Club Z, who then pays' her.
George Myers, a field-audit supervisor for the Department, testified that he had participated in the determination that Club Z’s tutors were employees and not inde-. pendent contractors. He stated that he had concluded from Club’s Z’s tutor agreement that Club Z | 4exercised control' oVer the tutors by controlling the assignments and the payment details. Myers further testified that he had found that Club Z was in the business of tutoring and that its tutors -performed the services at the client’s location, which was considered to be an extension of Club Z’s place of business under these circumstances.-
After the hearing, the Director issued a decision agreeing with the Department’s determination that Club- -Z’s relationship with its tutors constituted covered employment pursuant to Arkansas Code Annotated section 11-10-308 and that Club Z was responsible for the payment of unemployment-insurance taxes for the services performed by its tutors. Club Z then appealed to the Board, which affirmed and adopted the Director’s decision in an opinion filed on December 12, 2014. Club Z has now timely appealed the Board’s decision to this court.
On appeal, the findings of the Board are affirmed if they are supported by substantial evidence. Barb’s 3-D Demo Serv. v. Dir., 69 Ark. App. 350, 13 S.W.3d 206 (2000). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all rea sonable inferences therefrom in the light most favorable to the Board’s findings. Id. Even where there is evidence upon which the Board might have reached -a different conclusion, appellate review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. Also, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Johnson v. Dir., 84 Ark. App. 349, 141 S.W.3d 1 (2004).
|fiPursuant to Arkansas Code Annotated section ll-10-210(e) (Supp. 2013),
(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 the service, both , under his or her contract for the performance of service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
In order for an employer to establish the exemption set forth in section 11-10-210(e), it must prove each of the three requirements in subsections (l)-(3). Barb’s 3-D Demo Serv., supra. If there is sufficient .evidence to support the finding of the Board that any one of the three requirements for establishing the exemption is not met, the case must be affirmed. Id. In this case, the. Director found that Club Z .failed to satisfy the first two prongs of the statutory test, although it did satisfy the third prong. The Board affirmed and adopted the Director’s decision. •
As noted above, the failure to satisfy even one subsection of the statute requires us to affirm the Board’s decision, and because there was clearly substantial evidence to support the Board’s finding as to subsection (e)(2), we will discuss this subsection first. Arkansas Code Annotated section ll-10-210(e)(2) requires that the employer establish that the service is | ^performed either outside the usual course of the business for which the service is performed or that it is performed outside of all the places of business , of the enterprise for which the service is performed. The Board made the following findings with regard to this subsection:
The appellant argued that, in essence, it was merely a referral service with no employees whatsoever. The evidence does not support this argument. The appellant offers “in home” tutorial services and does not advertise itself merely as a referral service. It charges clients by the.-.hour, for those tutorial services. It does not simply collect a referral fee from the client and leave it to the tutor to charge for the tutorial services he or she provides. Rather, the appellant has an ongoing relationship with the client and is profiting from the tutoring itself. The Board finds that the employer is engaged in the business of providing “in home” tutorial services.
Having concluded that the appellant is in the business of providing in home tutorial services rather than simply being a referral service, it is clear that the activities of the tutors fail prong two of the test. The services which the tutors provide are not outside the normal course of business for the employer. They are exactly the services which the appellant is paid by the client to provide. Moreover, the services are not performed outside of all of the places of the appellant’s enterprise as “in home” tutoring indicates the appellant’s services are provided, “in home,” or wherever else the tutor and client agree to meet. Further, the employer’s own witness, Joanne Campbell, Owner, also testified that at times visits are made with the client at their home or other locations, in order to assess what type of tutoring services are needed, which also indicates that the services were not performed outside all of the places of the appellant’s enterprise.
Club Z continues to argue on appeal that it is merely a referral service and that it is not in the business of providing tutorial services. However, the Director and Board found from the evidence presented that Club Z advertises itself as offering “in-home tutoring” • services and that it profits from the tutoring itself, not from a referral fee. Furthermore, Campbell testified'that she often visits with clients at their homes to assess their needs.
In Mamo Transp., Inc. v. Williams, 375 Ark. 97, 103, 289 S.W.3d 79, 85 (2008), our 17supreme court interpreted the phrase “place of ‘ business” in section 11-10-210(e)(2) as “the place where the enterprise is performed.” Thus, in Mamo, the court found that the employer’s place of business was inside the vehicles that the employer had contracted to transport and that it had therefore failed to satisfy subsection (e)(2) of. the statute. Also, in Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 235 S.W.3d 536 (2006), this court found that the employer, HCP, who was a home care referral service, was in the business of providing in-home services for the elderly through its caretakers. Thus, the places of business of the enterprise included the clients’ premises, where the caregivers performed the very services by which HCP profited. See also TNT Cable Contractors, Inc. v. Director, 2015 Ark. App. 79, 2015 WL 590249 (affirming the Board’s finding that cable .installers were an integral part of TNT’s business and that the places of business of the enterprise included the locations of the installation and the. roadways between them).
Similarly, in this case, there was sufficient evidence to show that Club Z is engaged in the business of providing tutorial services and that the services that the tutors provide are not outside the normal course of Club Z’s business. Further, the services performed are not outside of all of the places of Club Z’s enterprise, as its places of business include the homes of its clients or wherever the clients and tutors agree to meet. Thus, there was substantial evidence to support the Board’s finding that Club Z faded to satisfy the requirement in Arkansas Code Annotated section ll-10-210(e)(2). It is therefore unnecessary to address the remaining statutory requirements, as Club Z failed to meet its burden to show that it is exempt from paying unemployment insurance taxes on its tutors. Accordingly, we affirm the | ^Board’s decision.
Affirmed.
Yirden and Kinard, JJ., agree.
. Section 11-10-210(e) was amended in April 2015; however, this was four months after the Board’s decision in this case, and thus, the amended version of the statute does not apply here.- " ‘ ■ | [
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BRANDON J. HARRISON, Judge
| (Antwan Fowler appeals his first-degree murder conviction and argues that the circuit court erred in (1) denying his motion for directed verdict, (2) not allowing certain questions during the defense’s cross-examination of Dr. Frank Peretti, (3) not allowing the defense to call Dr. Peretti as a witness in its case-in-chief, and (4) enhancing Fowler’s sentence based on use of a firearm. We affirm.
In a felony information filed 23 September 2011, Fowler was charged with first-degree murder and' employing a firearm in the commission of the crime. He was also later charged as a habitual offender. At a jury trial held in . September 2012, the State presented the following testimony.
■ Jodi Thomas testified that her husband, Stevie Thomas, was killed on Monday, 20 June 2011. ' She testified that she had attended high school with Fowler but that her husband |gand Fowler- were not close friends. Jodi explained that on- June 17, the Friday before her husband was killed, he spoke to Fowler on the phone and had the call on speaker. According to Jodi, Fowler was-"screaming-and cursing and he told Stevie,- ‘Don’t put the folks in it, it is on, on shot.’ ” Jodi testified that* Stevie was very upset and felt threatened by the conversation., -She testified that they stayed home for most of: the weekend, which was Father’s Day weekend, but that on June 19. Stevie and his brother. Kenny Thomas, ..went .to visit their father’s grave and then went to a-.get-together at “Uptoym E’s House.” She explained that they drove her vehicle, a white 2001 Ga-lant, and that there was a .45-caliber handgun in her car .that she kept, for her own protection. She testified .that when her car was returned to her after her husband’s death, the gun was missing, and she eventually reported it stolen.
Pam McFarland testified that she lived at 1120 Ingram and that she and her boyfriend. Eric, had a barbeque for Father’s Day on 19 June 2011. She explained that the barbeque lasted all • day and into the night and that there were probably twenty people there at any given time. She testified that she knows Stevie and Kenny Thomas' but did not see them that night. She also testified that she knows Fowler and did see him walk by the front .of the house that night. McFarland testified that, at some point that evening, she went inside and fell asleep but awoke to loud noises that she thought were fireworks. She explained that she went to the door and saw several people kicking another person who was lying on the ground. She identified Fowler as the person on the ground and stated that it looked like he had been shot. She saw several people get into Kenny Thomas’s car and drive away.
IsMontana Wright, McFarland’s seventeen-year-old daughter, testified that she was also inside the house when she heard shots that sounded like firecrackers — four shots in quick succession, and then more shots later. She also looked outside and saw people kicking someone on the ground. She did not see anyone with a gun that night.
Sixteen-year-old April Yager testified that she was staying with her friend Montana Wright that night and that she was also inside when she heard the shots. She testified that she saw a man sitting in a white car in front of the house and that she “guess[ed] he got shot.” When asked why it was a guess, Yager stated that she was told that by the police. She acknowledged talking to Detective Sarah Ault with the Conway Police Department but insisted that she (Yager) said only what the police wanted her to say.
PROSECUTOR: So your testimony to this jury today that you were coming out and we were just standing there, coming out of the house, and you started hearing all «the popping, so you turned back around and that’s when I seen a guy walk up and that’s when I turned around, he was walking up and I turned around, I saw him crack his door and that’s when it started going.” [sic] You don’t remember saying any of that?
YageR: I just told you that’s what she told me I saw.
PbosecutoR: You did say that to her; is that right?
Yager: Sure, yeah.
Prosecutor: Are you denying that you said that to her?
Yager: I couldn’t deny it if you have it, but I’m telling you that she told me that I was outside when I told her I was inside.
Prosecutor: And so when you said, when she asked you: “He had shot at somebody in the car in the driver’s seat?” And |4you said, ‘Yeah the guy was sitting in the car.” So you told her that because you thought she wanted you to say?
Yager: That is what she wanted me to say.... I agreed with her because I wanted to go back in the house.
ProsecutoR: So you just lied to her and made that up?
YageR: Yes sir.
Prosecutor: So when you said he shot at'the guy in the driver’s seat, that was made up?'
Yager: Yes sir.
Prosecutor: And you said, “I knew that they were shooting at each other because I heard popping and so I turned around and heard a popping and I seen the flashes.[”] You just made that up?
PROSecutor: Ms. Yager, it is also fair to say that you have said that the person sitting in the car was not the first person to shoot, right?
YageR: Yes sir.
Prosecutor: And is that just made up?
Yager: That’s what she told me happened.
Prosecutor: Ms. Yager, you would agree that you also told, because she told you what to say, that the person that started firing was the person that ended up on - the ground, isn’t that right? That’s what you told Detective Ault, right?
YageR: He—
PROSecutoRí Because the person that started' shooting first was the person that ended up on the ground. Do you remember saying that, don’t you? I mean, I know that Ryou are saying that you didn’t see that, but you agree you said.that?
Yagee: I don’t remember saying, that.
Detective Sarah Ault testified that she responded to the crime scene at 1170 Ingram Street. She explained that she interviewed witnesses and found that most of them “appeared - to not want to get involved.” - She also described a few witnesses -as “evasive, not wanting to cooperate.” She recalled speaking to April Yager inside the house and asking her to write a statement. ■ • After Yager refused, Ault spoke with her privátely and secretly recorded them conversation. ■ She denied ever telling Yager what to say or relaying details about the crime. She also confirmed that no handguns had been found at- the scene. On .cross-examination, .she explained that there was a second crime scene nearby involving a one-car accident at the corner of Caldwell and' Locust, and that Stevie and Kenny Thomas had left the Ingram Street crime scene in. that car.
Sergeant Gene Hodges testified that he responded to a suspicious-person call on 20 June 2011 near Ingram Street and, while checking the area, heard the gunshots. Hodges explained that he-and his partner heard a series of shots,, then more shots, and that he could tell that there were two weapons fired because one sounded different than the other. He stated it sounded like a smaller caliber was fired first, then a larger caliber. They immediately received a call to respond to Ingram ■ Street and arrived within a minute. Hodges observed a person lying between two cars, later identified as Fowler, and tried to speak with him, ■ but |r,Fowler was not coherent. Hodges explained that Fowler was wounded in his upper head and face area.
Officer Andrew Jphnson testified that he also responded to Ingram Street and observed Fowler lying on the ground with an apparent gunshot wound to his head. Johnson observed a significant amount of blood on the ground and several shell casings.
Detective Bradley Fornash testified that he responded to the scene of the one-car accident and- that the vehicle appeared to be traveling away from Ingram Street toward Conway Regional Hospital. His investigation revealed that Stevie-and Kenny Thomas had been the occupants of the vehicle.
Dr. Frank Peretti, a forensic pathologist and medical examiner at the Arkansas State Crime Lab, testified that he examined the body of Stevie Thomas. Dr. Per-etti stated that Thomas had three gunshot wounds — to his chest, thigh, and arm — and that the wound to his chest was the fatal wound. Thomas also had superficial wounds from the car accident.
Latricia Mainard, a- paramedic at MEMS Ambulance Service, testified that she responded to Ingram Street, where Fowler was in critical condition with wounds to his head and abdomen.
Detective Jason Cameron testified that he responded to the shooting at Ingram Street and that he recovered seven shell casings from two different calibers of guns — five from a .40 and two from a .45. He testified that one of the .45-caliber shell casings was found inside Thomas’s Mitsubishi Galant, along, with a bullet fragment from the windshield post and a bullet in the driver’s seat. • Cameron also identified photographs of bullet holes in the hood and windshield of the Galant and blood stains inside the Galant.
17Joseph Hoff, a forensic-DNA analyst with the Arkansas State Crime Laboratory, testified that blood samples taken from the Galant and the driveway at 1170 Ingram Street belonged to Stevie Thomas.
After ■ the State rested, the defense moved for a directed verdict, arguing that the State had failed to prove that Fowler purposely caused the death of Stevie Thomas. The defense argued that no one had seen Fowler in possession of a gun or seen him shoot Thomas. The motion was denied. The defense rested without calling additional witnesses and renewed the motion, which was denied. The case was sent to the jury, which found Fowler guilty of first-degree murder and employing a firearm as a means of committing first-degree murder. Fowler was sentenced to sixty years’ imprisonment for first-degree murder with an additional fifteen years’ imprisonment fpr. the , firearm enhancement.,
We first address Fowler’s challenge to the sufficiency' of the evidence. Although ..Fowler presents his challenge to the circuit court’s denial of his motion for directed verdict as his third point on appeal, we must address such a challenge first for purposes of double jeopardy. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, consider only the evidence that supports the verdict, and affirm if substantial evidence exists to support- the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, .compel a conclusion one way or the other, without resorting to speculation or conjecture. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41.
IsA person commits first-degree murder if, with a purpose of causing the death of another person, the person causes the death , of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2013). A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). A presumption exists that a person, intends the natural and probable consequence of his acts. Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007).
Fowler argues that the evidence in this case showed that he was attending a Father’s Day celebration in his neighborhood when, without provocation, he was shot by the decedent" multiple times. He asserts that there is no evidence in the record that he possessed a weapon or threatened the decedent. He also contends that none of the State’s witnesses testified that they saw Fowler harm, attempt to harm, or threaten to harm the decedent.
In response, the State argues that the evidence demonstrated that shots were fired from two different guns that night: five .40-caliber bullets were fired toward the decedent’s vehicle, and two .45-caliber bullets were fired from the decedent’s vehicle toward Fowler. According to the State, the evidence also showed that the five shots were fired first, by Fowler,, and that the decedent fired back in self-defense. The State contends that “[t]he jury, could reasonably infer from the testimony of the witnesses, combined with photographs taken and evidence gathered from the crime scene, that Appellant purposely caused the |3death of Steve Thomas by firing five shots at him from a,.40-caliber gun which struck the vehicle, and inflicted the fatal wounds.” -
We affirm. "Contrary to Fowler’s assertion, there was evidence that Stevie Thomas felt threatened by Fowler, that Fowler fired shots toward Thomas while he was sitting in his wife’s ear, and that Thomasretaliated by firing shots toward Fowler. We hold that .there was substantial evidence for the jury’s verdict without resorting to speculation or conjecture.
Next, Fowler argues that the circuit court erred in not allowing certain questions during the defense’s cross-examination of Dr. Peretti. Prior to trial, the State moved to exclude the results of a toxicology screen performed by Dr. Peretti on the decedent, which revealed the presence of alcohol, cannabis, and cocaine. The State argued that the results were prejudicial and not relevant. After noting that Fowler was pleading general denial as a defense, the court agreed that the toxicology report was not relevant and should be suppressed. The court did agree, however, that “[i]f they become relevant later, you know, I can change that ruling.”
During defense counsel’s cross-examination of Dr. Peretti, she asked him if he had run patholqgy reports on the decedent, which prompted an objection by the State. The State argued that the court had already ruled that the report and its results were not allowed. Defense counsel argued that the report was relevant because it was part:of the overall autopsy report, which was relied on by the State in deciding to bring charges against Fowler. |1f)Counsel also asserted that the presence of toxins in the body might have affected the speed and trajectory of the-bullets. Counsel insisted that the defense had the right to cross-examine Dr. Peretti on every aspect of the report he had prepared, even though the report was not introduced into evidence.
After the court sustained the State’s objection, defense counsel attempted to introduce the autopsy report hersélf, tó which the State objected because (1) it was a prior consistent statement, and'(2) the court had already ruled that some of the information in the report, specifically the toxicology screen, was prejudicial and irrelevant. The State argued that because Fowler’s defense was a general denial, the presence of intoxicants in the victim’s system was irrelevant. The court sustained the State’s objection, and defense counsel argúed'that the court was “restricting Mr. Fowler’s rights to ' confrontation.” The court responded that defense counsel could ask Dr. Peretti “about his findings on relevant 'issues that were brought up ... in direct examination. You' have that right, but you don’t have the right to introduce the irrelevant information and just because he produced it [the report] doesn’t mean it is relevant.”.
On appeal, Fowler again argues that the autopsy report, specifically the toxicology report, was relevant. ■ He argues that an inquiry into the “material issues” surrounding the victim’s intoxication “[was] necessary in order to challenge the cause of death.” This is especially so, he argues, “[g]iven that there is credible evidence that suggests that the decedent may -have died from either drug poisoning or. the injuries he sustained during his In car accident.” Fowler asserts that in limiting his cross-examination of Dr. Peretti, the circuit court violated his Sixth Amendment right to confrontation.
In response, the State argues that Fowler failed to obtain a ruling on any constitutional argument and that the circuit court did not err in finding that the results of the toxicology report were irrelevant. In his reply brief, Fowler asserts for the first time that he was denied the right to ask questions about the reliability of the autopsy report. This argument is both incorrect and raised for the first time in the reply brief, so it will not be addressed. See Hinton, supra.
Evidentiary rulings are a matter, of discretion and are reviewed only for abuse of that discretion. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70. While an accused is accorded wide latitude in cross-examination to impeach the credibility of a witness against him, the circuit court may also impose reasonable limits on what testimony is admitted based upon concerns about harassment, prejudice, waste of time, confusion of issues, or interrogation that is repetitive or only marginally relevant. Id., 318 S.W.3d 70.
We hold that the circuit court did not abuse its discretion in this instance. Given Fowler’s defense of general denial, the circuit court was correct in finding the victim’s toxicology report irrelevant. See Arnett v. State, 2010 Ark. App. 702, 2010 WL 4254417 (holding that' victim’s toxicology report was not relevant when defendant claimed 'he accidentally killed the h ¿victim). And, contrary to Fowler’s assertion, there was' no credible evidence upon which to challenge the cause of death. Dr. Peretti explained unequivocally that the “cause of death is self-evident, you’ve got multiple gunshot wounds.” And Fowler received no ruling on any Confrontation Clause argument so we need not address it. See Lewis v. State, 2014 Ark. App. 136, 432 S.W.3d 145 (failure to obtain a ruling on an issue at the trial court level, including a constitutional issue,. precludes review on appeal).
(Fowler also ai’gues that the'circuit court erred in not allowing the defense to call Dr. Frank Peretti as a witness in its casein-chief. At the conclusion of Dr. Peretti’s testimony during the State’s case-in-chief, defense counsel stated that she had no more questions but requested that Dr. Peretti “remain under subpoena to be called possibly after testimony from the other persons” at the State Crime Lab. Dr. Peretti explained that he would be traveling to Mena the next day, and the court stated, “I’m not sure weil need you tomorrow.” Defense counsel again asked whether Dr, Peretti would be under subpoena power, to which the court responded, ‘Yes, he will be, you will be under call.”
The next day, after the State rested, defense counsel announced that she would like to call Dr. -Peretti as a witness. The State objected and argued that “it -is discretionary with- the Court whether or not she gets to call the witness. The only questions she is going to ask the witnesses [sic] are questions we have already gone over and have been asked and answered.” The court noted that Dr. Peretti had been available the previous day and that defense counsel had an opportunity to cross-examine him. The court questioned what additional testimony from Dr. Peretti would be relevant, and defense counsel explained, “Our purpose is to call Dr. Peretti to explore specifically about some findings in his report | isthat come from some of the testimony reference the bullets, bullet fragments that were testified to by the analyst today.” The court responded that those questions had been asked the previous day, but defense counsel insisted that they were not the same questions and that she had additional questions.
After a lunch recess, the' bench conference continued, and the State objected to calling Dr. Peretti based on Ark, R. Evid. 611, which allows the court reasonable control over the mode and order of interrogating witnesses and presenting evidence. The State argued that Dr. Peretti had been subject to extensive direct examination and ■ cross-examination on all- the issues contained in his report and that there was no additional relevant testimony that had not already been elicited from Dr. Peretti. Defense counsel contended that she had questions for Dr. Peretti that could not be asked on cross-examination and that “go directly towards whether Mr. Fowler caused the death of Stevie Thomas.” The following exchange then took place:
The Court: If you don’t give me some indication of what Dr. Peretti is going to testify to today, that he did not testify to yesterday or you did not have an opportunity to ask yesterday, then I’m going to rule that your — his testimony is not relevant, that it is a waste of time because it is going to cause this case to be delayed another day and that’s within iny discretion.
’Defense Counsel: And again, then the Court is making the decision that— has taken the position that Defense counsel cannot call a witness for direct examination and I alh just asking that the Court—
The Court: Not when it results in a one-day delay.
Defense Counsel: Well, Your Honor, again—
I uThe Court: Because you knew yesterday that he couldn’t be here today.
Defense Counsel: I only dealt with their direct examination is the main intent. , I only dealt with that. I was limited in cross. I can’t “ask direct questions.’
The CouRt: You were not limited.
Defense Counsel: Oh yes, I can only — - it is only limited to ■ that, which was ■ asked on direct. •
The CouRt: Not one statement did anyone have an objection to you going . into anything that was not covered on direct.
Defense Counsel: They absolutely did make objections to things that specifically a toxicological reports [sic] weren’t in there.
The Court: That’s right.
Defense Counsel: There were other things that they did not address on direct that I want to address on my direct and we want to call him as a witness so , that I can address those issues from their report and based on some of the testimony that was given today. I want.to ask him direct questions about his findings based on I [sic] information and it did not come out on direct. And it couldn’t come out in cross because cross is limited to that which comes out on direct.
The Couet: I am going to deny your motion.
Defense counsel later proffered that Dr. Peretti “would have testified specifically as to the specific findings of the toxicological reports and their relevance to what may have been or contributed to Stevie Thom-ases] death.” Counsel also proffered the autopsy report and the toxicology report into evidence.
|1fiOn appeal, Fowler asserts that the circuit court violated his Sixth Amendment right to present witnesses to establish a defense when it failed to compel Dr. Peretti’s attendance during the defense’s case-in-chief or to continue the trial until Dr. Peretti was available. Fowler also argues that Dr. Peretti “inculpated” him and that he (Fowler) was “deprived of the opportunity to refute certain material allegations ,..' that Dr. Peretti advanced during the State’s case in chief.” Fowler contends that the State had a duty to assist the defense in securing Dr. Peretti’s presence and that the circuit court should have granted a continuance.
Contrary to Fowler’s argument on appeal, he failed to argue below that denying his request to call Dr. Peretti during the defense’s case-in-chief violated his Sixth Amendment rights, nor did he request a continuance when it was clear that Dr. Peretti was unavailable to testify. Therefore, these arguments áre not preserved for our review. See Lems, supra. Also, Fowler’s contention that he was “inculpated” by Dr. Peretti is completely baseless; we can find no evidence of this in the record, and he (Fowler) has failed to provide a citation to either the abstract or the record to support this contention. Moreover, Dr. Peretti made it very clear that he did not know who shot Stevie Thomas and that, as a forensic pathologist, he was'concerned only with how death occurred, not who did it or why they did it. We therefore affirm on this point.
Fowler’s final argument is that the circuit court erred in enhancing Fowler’s sen-tencé based on use of a firearm. Arkansas Code Annotated section ‘ 16-90-120(a) (Repl. 2013) provides as follows:
Any person convicted of any offense that is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing |1ficourt, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
In this case, the jury found that Fowler employed a' firearm as a means of committing first-degree murder and recommended an additional sentence of fifteen years’ imprisonment. - .
On appeal, Fowler argues that the State failed to prove that he used a firearm 'to kill the decedent. He asserts that no witness testified that he possessed a firearm or that he shot the decedent and that the State failed to produce the firearm allegedly used by Fowler to shoot the decedent. However, because we are affirming Fowler’s conviction for the first-degree murder of Stevie Thomas, and Thomas was killed by multiple gunshots wounds, we hold that there is no merit in Fowler’s- -.argument that there was no proof that he- used a firearm to kill the decedent,.
Affirmed.
Abramson and Brown, JJ., agree.
. This conversation, which is apparently what the prosecutor was quoting during Yager’s direct examination, was not admitted into evi- ■ dence.
. In his reply brief, Fowler denies that there was any evidence that he purposely caused the death of the decedent and disputes the evidence cited by the State. However, because this argument is raised and developed for the first time in his reply brief, we do not conisider it. Hinton v. State, 2010 Ark. App. 341, 2010 WL 1609611.
. Fowler also mentions the court’s limiting his cross-examination of the paramedic, Latri-cia Mainard, but his argument focuses on Dr. Peretti, so Mainard’s cross-examination will not' be discussed. See Hendrix v. State, 2011 Ark. 122, 2011 WL 1177219 (failure to develop an argument precludes review of the issue on appeal). Fowler also argues that the circuit court erroneously held that the autopsy report was inadmissible under the business-records exception to hearsay, but because we cannot find such a ruling in the record, this argument will not be addressed. | [
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ROBIN F. WYNNE, Associate Justice
hThe City of Siloam Springs (the City) appeals from an award of attorney’s fees to appellees, La-De, LLC (s/k/a/ De-La, LLC), Larry Muruaga, and Kathy Murua-ga (the Muruagas), in a judgment arising from a condemnation proceeding. The City argues that the trial court erred as a matter of law by awarding attorney’s fees because it lacked statutory authority to do so, and that the trial court erred by finding that it had assumed state liability 12for an award of fees. This appeal was initially heard by the Arkansas Court of Appeals, which issued an opinion reversing the order of the trial court awarding attorney’s fees. City of Siloam Springs v. La-De, LLC, 2015 Ark. App. 130, 456 S.W.3d 787. The Muruagas petitioned this court for review, which was granted. Because the petition for review by this court was granted, our jurisdiction lies pursuant to Arkansas Supreme Court Rule l-2(e) (2015). We reverse and remand the judgment of the trial court.
Originally, the Arkansas State Highway Commission (the Commission) filed a complaint and declaration of taking against appellees in 2011 under the authority granted in Arkansas Code Annotated sections 27-67-301 to -321. The trial court entered an order of possession on September 9, 2011,' granting the Commission immediate possession of the property pursuant to the provisions of Arkansas Code' Annotated sections* 27-67-301 to -319. Appellees answered, claimed entitlement to just compensation, and requested a jury trial.
An order substituting the City in place of the Commission was entered on January 8, 2012. The City filed a second amended complaint for condemnation of land and order of immediate possession on January 7, 2014. The complaint stated that the City was seeking possession pursuant to Arkansas Code Annotated sections 18-15-301 et seq. The complaint further alleged that the amount of $13,950 would be just compensation for the taking and that this amount had been placed in the registry of the court. In their answer to the second amended complaint, appellees admitted that the City was proceeding under Title 18, but denied that $13,950 was just compensation.
Following a jury trial, the jury rendered a verdict in favor of appellees, finding that Isthey were entitled to just compensation in the amount of $22,253. The Muruagas subsequently filed a motion for attorney’s fees, in which they alleged that their property had been taken by the State of Arkansas through the Commission and that they were entitled to an attorney’s fee pursuant to Arkansas Code Annotated section 27-67-317(b)... The City responded and argued that appellees were not entitled, to fees because the statutes that grant a city the right to exercise eminent domain do- not, allow, for an award of fees. In response to the City’s argument, the Mu-ruagas alleged that the order of possession was the final order and. that the ‘.order of possession was entered. ■ pursuant to the authority granted to theCommission under Title-27.
On May 6, 2014, the trial court entered a judgment in favor of the Muruagas in the amount of $22,253 and awarded attorney’s fees,.costs, and expenses in the amount of $17,549.44. That same day, the trial court entered a separate order granting the motion for attorney’s fees and expenses and directing the City to pay the award contained in the judgment. In the order, the trial court found that- the City had assumed the Commission’s liability for just compensation and had relied on the order of possession granting title to the Commission. . The trial court found that this established that the City was responsible for paying attorney’s fees to appellees, This appeal followed.
The City first argues that the trial court erred in awarding a fee because the applicable statutes do not provide for a fee award. We review issues of statutory construction de novo. Harris v. City of Fort Smith, 366 Ark. 277, 280, 234 S.W.3d 875, 878 (2006). We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court 14erred, its interpretation will be accepted as correct on appeal. Id. When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. "When the language of a statute ’ is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only'where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain' as to its meaning. Id. When a statute is clear, however, it-is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id.
Attorney’s fees are not allowed except where expressly provided for by statute. Fluker v. Helena-W. Helena Pub. Sch. Dist., 2012 Ark. 327, 2012 WL 4017402. The trial court awarded a fee pursuant to Arkansas Code Annotated section 27-67-317(b), which states,
If the compensation finally awarded exceeds the amount of money deposited by ten percent (10%) op more, the court shall enter judgment against the State of Arkansas and in favor of the party entitled thereto for the amount of the deficiency and shall award the party entitled to judgment its costs, expenses, and reasonable attorney’s fees incurred in preparing and conducting the final hearing and adjudication, including without limitation the cost of appraisals and fees for experts.
Ark.Code Ann. § 27-67-317(b) (Supp. 2015) (emphasis added). This section clearly allows for an award of a fee against the State of Arkansas. It does, not allow for a- fee to be assessed against- any other entity. The City is not an entity of the State.: Therefore, the statute does not allow for an award of fees against the City.
| sThe City’s second argument is that the trial court erred by finding that it had assumed the Commission’s liability for a fee under Arkansas Code Annotated section 27-67-317(b) because it had been substituted as a party in place of the Commission and had relied on an order of possession éntered in favor of the Commission. We review the decision to grant or deny a motion for attorney’s fees under an abüse-of-discrétion standard. See Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321. Factual- findings by a trial court are -reviewed under a clearly erroneous standard. See id.
We agree with the City’s argument. The City was substituted as a party,. and the- Commission was dismissed with the consent of appellees. After the substitution, the City filed a second amended complaint. In the second amended complaint, the City clearly proceeded under Title 18, subchapter 8— which governs the exercise of eminent domain by municipal corporations — for the condemnation. In their answer to the sec-, ond amended complaint, appellees admitted that the City’s condemnation authority is pursuant to Title 18, subchapter 3. The City did not utilize the State’s authority in obtaining the judgment. It utilized its own authority under Title 18, subchapter 3. The order substituting the City and dismissing the Commission did just that; it did not order that the City accept the Commission’s responsibilities, nor did the City indicate that it was doing so in the second amended complaint. The order also, instead of stating that the City was proceeding under the Commission’s authority, directed the City to file an amended complaint setting forth its authority to condemn the property. Because the City proceeded solely under' its own | ^authority, it did not assume the Commission’s obligation to pay attorney’s fees. The finding by the trial court that the City relied on the order of possession granting title to the Commission is clearly erroneous, as the City averred in the second amended complaint, without a denial from the M4-ruagas, that it gained right of entry to the property by virtue of paying a deposit into the registry of the court pursuant to 'Arkansas Code Annotated section 18-15-303, not that it gained right of possession by virtue of the order of possession entered in favor of the Commission. While the Mu-ruagas argue, in the context of. their- contention that the City was exercising the Commission’s .authority, that title to the property vested in the Commission upon payment of the deposit into the registry of the court pursuant to Arkansas Code Annotated section 27-67-315 (Repl. 2010), title to the property is not at issue in this appeal, nor is the issue of whether the Commission could have legally withdrawn from the proceeding when it did. Whether appellees are entitled to an attorney’s fee paid by the City is the sole issue on appeal. The Muruagas did not object to the dismissal of the.Commission from the action, nor have they ever challenged the validity of the judgment awarding title of the property to the City.
Because there is no statutory authority for an award of attorney’s fees against a ^municipality in a condemnation proceeding, and because the City proceeded under its authority as a municipality in exercising eminent domain over the property, the judgment is reversed and remanded for entry of an order consistent with this opinion.,
Reversed and remanded; court of appeals opinion vacated.
Baker and Hart, JJ., dissent.
. We note that the dissent, in attempting to demonstrate that the City is responsible for the Commission’s obligations, relies on an agency argument that was not made or ruled on below, nor was it made on appeal. It is axiomatic that this court will not make appel-lees’ argument for them. See Bailey v. Martin, 2014 Ark. 213, 433 S.W.3d 904.
. Although the City, in the second amended complaint, referenced the order of possession and averred that it was still in effect, it gave no indication in the complaint that it was acting under the order of possession. Nor, as explained above, is the order of possession necessary for. the City to enter the property. | [
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M. MICHAEL KINARD, Judge
| Appellant Michael Terrell appeals from the termination of his parental rights to his children A.P. (dob 11-22-07) and A.T. (dob 10-23-09). For his sole point on appeal, he contends that the trial court lacked subject-matter jurisdiction to terminate his parental rights. We disagree and affirm.
The Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect regarding A.P. and A.T. in November 2013. Appellant’s wife, Jessica Terrell, had left the children with an inadequate caretaker, who called the police. Jessica told the caseworker that she came to Arkansas from Mississippi about six months earlier to stay vidth her sister because she was having relationship problems with appellant. Jessica tested positive for marijuana, cocaine, methamphetamine, and opiates. Appellant called the caseworker and stated that he wanted the children to live with him in Mississippi. |2The trial court entered an order for emergency custody on November 20, 2013.
Following a January 14, 2014 adjudication hearing, the children were found to be dependent-neglected -based on neglect, abandonment, and parental unfitness. Aggravated circumstances were found based on the children testing-positive for cocaine and the parents’ lack of effort to participate in services. In December 2014, DHS filed a petition to terminate the rights of both parents. Prior to the termination hearing, the children’s paternal grandparents filed a motion to intervene.' They argued that Mississippi, not Arkansas, had jurisdiction over the matter, and they attached a petition for guardianship of the children filed in Mississippi in February 2015. At the March 3, 2015 termination hearing, the trial court found that it had jurisdiction and denied the motion to intervene. Following the hearing, the trial court terminated Jessica’s and appellant’s parental rights.
Child-custody jurisdiction is a matter of subject-matter jurisdiction. Davis v. Arkansas Department of Health & Human Services, 98 Ark. App. 275, 254 S.W.3d 762 (2007). The Uniform Child-Custody Jurisdiction and Enforcement Act (UC-CJEA), which is codified in Arkansas Code Annotated sections 9-19-101 to -401 (Repl. 2009), provides the exclusive method fpr determining the proper forum in child-custody proceedings involving other jurisdictions. Arkansas Department of Human Services v. Waugh, 2015 Ark. App. 155, 457 S.W.3d 286. A child-custody proceeding under the UCCJEA includes proceedings for neglect, abuse, and ‘termination of parental rights. Ark. Code Ann. § 9-19-102(4).
Appellant argues that, under the, UC-CJEA, Arkansas was not the home state of the children with jurisdiction to make ,an initial child-custody determination under section |s9-19-201. This statute provides as follows:, .
(a)Except as otherwise provided in § 9-19-204, a court of this state has jurisdiction to make, an initial child-custody determination only if:
(1) this state-is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 9-19-207 or § 9-19-208, and:
(A) the child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3). all courts having jurisdiction under subdivision (a)(1) or (2) of this section •have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 9-19-207. or § 9-19-208; or
(4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3) of this section.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. Ark. Code Ann. § 9-19-102(7). Appellant argues that there was Uno clear evidence that the children, had been in Arkansas for at least six months when they were taken into custody.
As we stated in Davis, supra, the first clause of section 9-19-201 (a) makes it clear that the provisions of that section are applicable only if the provisions of section 9-19-204 áre not. Section 9-19-204 addresses temporary emergency jurisdiction and provides in part as follows:
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and,the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child-custody determination that is entitled to be enforced under this chapter, and a child-custody proceeding has not béeft commenced in a- court of a state having jurisdiction under ■§§ 9-19-201 — 9-19-203, a child-custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction • under §§ -9-19-201 — 9-19-203. If a child-custody proceeding has not been or is mot commenced dn a court of a state having jurisdiction under §§ 9-19-201 — 9-19-203, a child-custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
In - Davis, the appellant argued that the trial court erred in exercising jurisdiction beyond the initial emergency proceeding because the children had moved to Arkansas from Louisiana only four months before they were taken into custody. . This court held that the ÚCCJEA did not require a trial court that had assumed temporary jurisdiction to return custody to a parent where there was no competing custody order. Because there was no credible evidence of a custody order or a current custody proceeding in Louisiana, we held that the provisions of Arkansas Code Annotated section 9-19~204(b) applied, and Arkansas then became the home state of the children. We concluded that the trial court acted correctly when it continued to exercise- subject-matter jurisdiction in the case and that such [ jurisdiction existed when -the termination order was entered.
Here, appellant concedes that the trial court had jurisdiction to enter the order for emergency custody under, section 9-19-204. As in Davis, there was no evidence of a previous child-custody- determination. A child-custody proceeding had been commenced . in Mississippi (the guardianship petition), but it was not a child-custody proceeding commenced “in a court of a state having jurisdiction under §§ 9-19-201 — 9-19-203.” The guardianship petition was filed in February 2015. At, that time, the children had been in Arkansas, first with their mother, then in the custody of DHS, for well over a year. Thus, Mississippi was not the home state of the children in February 2015' or within six months before February 2015. Arkansas had become the home state of the children, and as a result, Mississippi did not have jurisdiction under §§ 9-19-201 to -203 in February 2015. As there was no previous child-custody determination and no child-custody proceeding had been commenced in a court of a state with jurisdiction, , the provisions of Arkansas Code Annotated section 9-19-204(b) applied, and Arkansas subsequently beeame the home state of the children before the termination proceeding was commenced. Thus, we hold that the trial court had jurisdiction under. , the' UC-CJEA to terminate appellant’s parental rights.. ■
Affirmed.
Gruber and Hixson, JJ., agree.
. Arkansas Code Annotated section 9-19-202 provides for exclusive, continuing jurisdiction of a court of'this state which has made a child-custody determination. Section 9-19-203 governs jurisdiction of a court of this state to modify a child-custody determination made by a court of another state. | [
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JOSEPHINE LINKER HART, Associate Justice
| Appellant, State of Arkansas, brought a criminal charge against appellee, Billy Gene Coble, alleging that Coble had engaged in sexual indecency with a child, in violation of Arkansas Code Annotated section 5-14-110(a)(4)(C)- .(Repl. 2013). A jury trial was held, and at the close of the State’s case, the circuit, court directed a verdict in Coble’s favor. The State appeals, asking this court to declare error- on a question of law. Particularly, the State argues that the.circuit court erred in its determination of what is meant by the phrase “another person” in the criminal statute. We accept the appeal and affirm the circuit court’s decision.
Rule 3(b), (c), and (d) of the Arkansas Rule of Appellate Procedure— Criminal, authorizes this court to hear an appeal when the Attorney General, after inspecting the trial record, is satisfied that error has been committed to the prejudice of the State and that the correct and uniform administration of the criminal law requires such review. As a threshold matter, we must consider whether the State has properly brought its appeal pursuant to this |2rule. This court decides appeals brought by the State in criminal cases only when the issue is narrow in scope, involves the interpretation of law, has widespread ramifications, and involves the correct and uniform administration of the criminal law. State v. Thomas, 2014 Ark. 362, at 3, 439 S.W.3d 690, 692. We dismiss appeals that only raise an issue of the application, not interpretation, of a statutory provision. Id., 439 S.W.3d at 692. The issue before this court is a narrow one of statutory interpretation and does not turn on particular facts. Our decision will have widespread application and is required for the correct and uniform administration of the criminal law. We hold that this is a proper State appeal.
Given that this is solely a question of the interpretation of the criminal statute, a recitation of the facts presented at trial is unnecessary, and we need only resort to an examination of the statutory language. In pertinent part, Arkansas Code Annotated section 5-14-110(a)(4)(C) provides that “[a] person commits sexual indecency with a child if ,.. [w]ith the purpose to arouse or gratify his or her sexual desire or a sexual desire of another person, a person who is eighteen (18) years of age or older causes or coerces a minor to expose his or her sex organs to another person, and the actor is ... [t]he minor’s guardian.” (Emphasis added.) We emphasize the phrase, “another person,” as it is this phrase that the State asks this court to interpret.
In directing a verdict in Coble’s favor, the circuit court concluded that, as used in the statute, the phrase, “another person,” means someone other than the defendant. In essence, in interpreting section' 5-14-110(a)(4)(C), the circuit court concluded that a guardian commits the crime only if he or she causes or coerces a, minor,to expose his or her sex organs — not to | sthe actor (who is the guardian) or the victim— but instead to another person.
On appeal, the State asserts that the circuit court’s interpretation will lead to an absurd result, as the intent of the statute is to protect minors from actors who are guardians of the minors, and this court will not interpret a statute to lead to an absurd result. The State argues that it “flies in the face of logic to read the statute to mean that a person in such a position could escape criminal liability as long as he causes the child to expose himself or herself solely to him (the actor) and not to a third person.” The State proposes that a “common-sense” reading of the statute shows that the phrase “causes or coerces a minor to expose his or her sex organs to another person” means to any person other than the victim, and that such a reading does not exclude the actor as “another person.”
On appeal, we consider statutory interpretation de novo. Thomas, 2014 Ark. 362, at 4, 439 S.W.3d 690, 692. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. First Ark. Bail Bonds, Inc. v. State, 373 Ark. 463, 464-66, 284 S.W.3d 525, 527 (2008). We construe the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute, if possible. Id. at 465, 284 S.W.3d at 527. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. Id., 284 S.W.3d at 527.
A plain reading of the statute indicates that the statute clearly differentiates among the person (actor), the victim, and “another person.” The statute provides that a “person” (actor) | ¿commits the crime if with the purpose to arouse or gratify “his or her” sexual desire (meaning the actor’s sexual desire) or a sexual desire of “another person,” a “person” (actor) causes or coerces a “minor” to expose his or her sex organs to “another person.” In sum, there is an actor who must cause or coerce the minor, for the gratification of either the actor or “another person,” and the exposure to “another person.” Given that the statute specifically delineates between the actor and “another person,” that same distinction must be carried forward throughout the statute, and thus the exposure must be to “another person.”
Our interpretation of the statute is supported by' the examination of other provisions of the statute. Section 5-14-110(a)(5) provides that a person commits the crime of sexual indecency with a child if “[b]eing eighteen (18) years of age or older, the person causes or coerces another person who is less than fourteen (14) years of age to expose his or her sex organs or the breast of a female with the purpose to arouse or gratify a sexual desire of himself, herself, or another person.” In that subsection, the exposure is not limited to “another person.” Thus, the General Assembly, had it so intended, could have likewise written section 5-14-110(a)(4) so that the subsection did not specify to whom the exposure must be made.
This court has observed that the State is not required to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act, Rounsaville v. State, 374 Ark. 356, 360, 288 S.W.3d 213, 216 (2008). The General Assembly may have intended to preclude the chance of creating a question of fact and the possibility of a criminal prosecution each time a guardian, such as a mother or a father, asks a minor to expose his or her sexual organs to the mother or father for some legitimate purpose.
Furthermore, even if this court were to conclude, as the State does here, that this interpretation will lead to an “absurd” result, the State misunderstands this canon of statutory construction. As has been noted, “The doctrine of absurdity is meant to correct obviously unintended dispositions, not to revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense.” Antonin Scalia & Bryan A. Garner, Reading Lato: The Interpretation of Legal Texts 239 (2012). Under the State’s conception of the doctrine, one could deem a statute as “absurd” even though the statute’s meaning is plain. Accordingly, we affirm the circuit court’s interpretation.
Affirmed.
Brill, C.J., and Danielson, J., dissent.
. We are unsure why the dissent believes that this paragraph suggests that Coble could have been charged under section 5-14-110(a)(5). We did not. The purpose of our citation to that subsection is to establish that statutory meaning may be gleaned from the examination of statutory language.
. "Guardian” is defined as "a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor.” Ark.Code Ann. § 5-14-101(3) (Repl. 2013). | [
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RITA W. GRUBER, Judge
| t This case involves a dispute about life-insurance proceeds received by Susannah Baxter upon the' death of her stepfather, Bazel Winstead. Susannah’s brother, John Wing, sued her, contending that the policy proceeds were intended to be split equally between Susannah, John, and their two siblings, Stephen Wing and Lanie Martin. The Benton County Circuit Court entered an order imposing a "constructive trust on the proceeds after finding that Bazel and Susannah had entered into an oral contract requiring Susannah to divide the proceeds with her siblings. Susannah has appealed from that order. We hold that the court’s finding of an oral contract is clearly erroneous, and we reverse the circuit court’s order.
John, Stephen, Lanie, and Susannah are the stepchildren of Bazel Winstead, who married their mother, Betty, in 1988, At that time, Susannah was in eighth grade; the other three children were grown, married, or out of the house. Susannah was the only sibling who grew up with Bazel acting as her father. In January 2011, Betty died. Shortly thereafter, | ¡>Bazel began updating his estate plan. In February 2011, Bazel updated one of his life-insurance policies, naming Susannah as his sole beneficiary. In March 2011, he updated his will, leaving his estate to the four siblings “share and share alike.” In April 2011, he applied for additional life insurance and named Susan-nah as the sole beneficiary. In the spring of 2011, Bazel called Susannah and told her what he had done with his estate. According to Susannah, he told her that the will divided the. estate four ways and that the life insurance was in Susannah’s name only. She said that he told her to “just share some with your brothers and sister.”
Bazel died on September 16, 2013. The proceeds from his life-insurance policies, in the total amount of $208,004.74, were eventually all paid to Susannah. The parties dispute exactly what conversations occurred between the siblings after Bazel’s death, but they do agree that Susannah said that she would share some of the proceeds with her siblings. John believed it was incumbent on Susannah to divide the proceeds evenly: 25 percent to each sibling. Susannah believed that the proceeds were hers and that Bazel’s instructions to her were to “share some” as she chose. John sent numerous messages to Susan-nah inquiring about her intent regarding the life-insurance proceeds and eventually filed a complaint against her. He initially filed the lawsuit in Garland County on February 7, 2014, but it was transferred to Benton County on June 6, 2014.
The circuit court held a bench trial in March 2015 at which testimony was given by all four siblings; Susannah’s husband, Josh Baxter; and the father of the four siblings, Franklin Wing. John testified first. He said that he was in his late twenties when his mother married |sBazel and that he had never lived near them. He said that he lived in Austin, Texas, and had two grown children. He admitted that, before Bazel died, John had no knowledge about Bazel’s estate plan, no idea whether he had life insurance, and no conversation with Bazel or any of his siblings about either subject. He testified that he and Bazel had not been close. He said that he had learned about the life insurance the day after Bazel’s funeral when Lanie told him that Susannah had approached her and suggested they not tell John about the life insurance and split it three ways. He also referred to a conversation among the four siblings during lunch at Subway in which Susannah had told the siblings that everyone would get some of the proceeds. He admitted that he had continued to email and text Susannah and Josh, stating that he was waiting on his “portion” and asking if Susannah was going to follow Bazel’s instructions. John said he did not dispute that Susannah was the named beneficiary on all of the life-insurance policies, but he had been told by Lanie and by his father, Franklin, that Bazel had given Susannah specific instructions regarding those proceeds. His opinion was that Susannah had “some sort of oral contractual agreement to distribute the life insurance equally at the specific instruction of Mr. Winstead,” although he admitted that he did not have first-hand knowledge about those instructions. He said that Lanie had not told him about any specific instructions but had merely said that they would all “be taken care of.”
Franklin Wing testified that he had a very close relationship with his son John and was not at all close to his daughter Susannah. He explained his relationships on a scale of 1 to 10 as being a 10 with John, an 8 or 9 with Lanie, and a -8 with Stephen and Susannah. He testified that Susannah had called him several times after Bazel’s death to discuss the insurance Lpolicy. He said that he had asked her if Bazel had given her any instructions and then had told her that she should follow them. Franklin testified that Susannah had said that Bazel told her to divide the proceeds “evenly and fairly.” He said one time when he had spoken with Susannah, she told him that Bazel told her to divide the insurance proceeds just as his will was dividing the property. He said that he had emailed Susannah in January and pleaded with her to follow Bazel’s instructions and to “do the moral and ethical thing.” Franklin admitted that he had no first-hand knowledge about the insurance policy and that he had never spoken with Bazel about his estate or life insurance.
Lanie testified that, after their mother passed away, Bazel had told her that they would all “be taken care of.” She said that she assumed he meant both the will and the life insurance, but she admitted that this was Bazel’s only comment to her about it and that he did not give her any specifics. She testified that Susannah had never told her what Bazel wanted her to do with the life-insurance money. She said that she did tell John about Susannah’s comments to split the money three ways and leave John out but that she did not take Susannah’s comment to mean that, if John were included, the money would be split four ways. She said, “It just didn’t sit well with me. We are four children. It should be split four ways.” She testified that she now interpreted Susannah’s comments to mean that she was obligated to split the money four ways. She said that she did not have any other conversations with Susannah about the life insurance.
Susannah testified that she had lived with her mother and Bazel from eighth grade until she was twenty-three years old except for her senior year in high school, when she lived |swith Lanie in order to graduate with her friends in Hot Springs. She said that she moved back in with her parents when she was twenty-five and lived with them until she was twenty-eight. She testified that when her mother died in 2011, Susannah was the named beneficiary of a life-insurance policy in the amount of $20,000 to $25,000. She said that after the funeral expenses had been paid, she gave the remainder of the money to Bazel for home repairs.
Susannah testified that Bazel called her in the spring of 2011 and told her, “This is what I’ve done.” He said that he had taken care of burial insurance, split his property equally among the four siblings in his will, and left life insurance in Susannah’s name. He told her to “share some” with her siblings. She said that she did not respond to this, because it was a declarative statement and not a question seeking a response. She also testified that she was not clear after Bazel died whether the life-insurance proceeds were part of probate. When the siblings had lunch at Subway before they met with the estate attorney, she told them that everyone would get some of the life-insurance proceeds. She did not indicate any particular amount. She said that she had always intended to share some with her siblings, as Bazel had instructed. She testified that the estate attorney clarified after lunch that the proceeds belonged to Susannah and were not part of probate.
Susannah testified that she had spoken several times with Franklin and that he had told her to split the life insurance “just like the will said.” She testified that Franklin did most of the talking in their conversations and that he “spent a lot of time trying to explain to me how I could split it up evenly.” She said that he kept telling her that she was wrong and acting like Ushe was confused. She said that she had been frustrated talking to him and had felt like he was not listening to her. She testified that Franklin’s version of their conversations was “completely false.”
Stephen testified that he had been appointed by Bazel as the executor of the estate sometime in early 2011. He testified that Bazel had never told him anything specific about the will, talked with him about life insurance, or given any specific instructions to him. He said that he had found no instructions or notes contrary to the will or life-insurance policy after Ba-zel’s death. He described Susannah as Ba-zel’s only “dependent ... his daughter” and testified that the other siblings did not have a “real relationship” with Bazel. He said that it made “perfect sense” to him that Bazel had left the life insurance to Susannah and her young family.
On June 22, 2015, the circuit court entered an order finding that Bazel and Su- sannah had entered into an oral contract whereby, upon receipt of the insurance proceeds, Susannah was to divide the proceeds evenly among her and her three siblings. The court found that, by not dividing the proceeds, Susannah had breached the contract. Thus, the circuit court imposed a constructive trust on the proceeds and awarded judgment to John against Susannah in the amount of $52,001, one-fourth of the total proceeds. The court also awarded him $20,000 in attorney’s fees.
Susannah appeals the circuit court’s order, arguing that the court clearly erred in finding that she and Bazel had entered into an oral contract and that it improperly imposed a constructive trust on the proceeds. Our standard of review on appeal from a bench trial is |7whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Foundation Telecomm., Inc. v. Moe Studio, Inc., 341 Ark. 231, 238, 16 S.W.3d 531, 536 (2000). We defer to the circuit court’s credibility assessments. Id. at 240, 16 S.W.3d at 537. Because the court’s imposition of a constructive trust was based on its finding of an oral contract, we review that issue first.
The question before us is whether Bazel and Susannah entered into an oral contract pursuant to which she agreed to distribute the life-insurance proceeds equally among her and her siblings after Bazel’s death in exchange for his promise to refrain from revoking his beneficiary designation. The parties do not dispute that it was Bazel’s expressed desire for Susannah to share some of the life-insurance proceeds with her siblings after his death. They do dispute exactly how much he told her to share and whether he “instructed” her to divide the money equally or “suggested” that she simply share some of the money. A resolution of this dispute would be neither relevant nor helpful, however, to the basic issue before us. Because, even if Susannah had a moral obligation to do what her stepfather asked of her, she did not have a legal obligation to do so under the facts of this case.
We turn to the law governing contracts. It is black-letter law that this court cannot make a contract for the parties but can only construe and enforce the contract that they have made. City of Dardanelle v. City of Russellville, 372 Ark. 486, 491, 277 S.W.3d 562, 566 (2008). The traditional definition of a “contract” is “a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” 1 Richard A. Lord, Williston on Contracts § 1:1 (4th ed. 2007). A | Rpromise is “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Id. § 1:2. Our supreme court has stated that the purpose of the law of contract is to see that promises are performed. Bankston v. Pulaski Cty. Sch. Dist., 281 Ark. 476, 479, 665 S.W.2d 859, 862 (1984).
Under Arkansas law, a contract must include the following essential elements: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. City of Dardanelle, 372 Ark. at 490, 277 S.W.3d at 565-66. Mutual promises may constitute consideration, each for the other. Capel v. Allstate Ins. Co., 78 Ark. App. 27, 40, 77 S.W.3d 533, 541 (2002). While mutual promises will sustain a contract, there is no valid agreement if there is no promise by one party as a consideration for the other’s promise. Essential Accounting Sys., Inc. v. Dewberry, 2013 Ark. App. 388, at 6, 428 S.W.3d 613, 617.
According to the law set forth above, the foundation of a contract is a promise. Here, John argues that even though Su-sannah was already the designated beneficiary of the life-insurance policies at the time of the alleged contract, Bazel had the ability to change .the beneficiary at any time. Thus, he claims, Bazel’s promise to refrain from changing the beneficiary was sufficient consideration in exchange for Su-sannah’s promise to divide the proceeds. While a true-enough proposition, the court did not make this finding. Rather, the circuit court determined that Bazel and Su-sannah had entered into an oral contract based on its finding credible the testimony that Bazel’s “instructions were to divide the insurance |3proceeds evenly.” While it may very well be a clear expression of Bazel’s intent, his instructions do not constitute an oral contract. The court did not find, and the evidence does not support a finding, that either Bazel or Susannah made any promise at all. John’s witnesses testified that Bazel merely instructed Su-sannah to divide the proceeds evenly. No one testified that Bazel expressed any intention or desire to revoke his beneficiary designation if Susannah did not agree to these instructions. Moreover, no one testified that Susannah made any promise to Bazel to follow his instructions. Accordingly, we hold that the circuit court clearly erred in finding that Bazel and Susannah entered into an oral contract regarding distribution of the life-insurance proceeds.
Given our holding herein, we reverse the circuit court’s order in its entirety, including the imposition of a constructive trust and the award of costs and attorney’s fees.
Reversed.
Harrison and Hoofman, JJ., agree. | [
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DAVID M. GLOVER, Judge
hThis appeal arises from the trial court’s summary judgment against consolidated complaints filed on behalf of the estate of a young girl who drowned in a pond located in Washington County. We affirm the dismissal.
On September 1, 2012, Aalyah Jerwan drowned in a retention pond located on private property. She was twelve years old at the time. Two lawsuits were filed with respect to Aalyah’s death—one by Special Administratrix Jelina Lewis (CIV-2015-1485-4) and the other by Special Administrator Bryan L. Powell (CIV-2015-1495-1). The original complaints were filed in August 2015 against ISC North, LLC; ISC South, LLC; Joe I ^Edwards; Joe Edwards, as trustee of the Joe Edwards Revocable Trust, as amended and restated u/t/d November 5, 2007; and several other named defendants. The complaints were virtually identical and alleged -the defendants were responsible for the wrongful death of Aalyah. The complaints were based on the attractive-nuisance doctrine and negligence. The administrators of Aal-yah’s estate subsequently moved to consolidate the two cases, and the court allowed it.
On October 19, 2015, after the consolidation order had been entered, the defendants answered the complaint and moved to dismiss the case pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. They contended the complaint failed to state a claim upon which relief could be granted because a pond is not an attractive nuisance under Arkansas law, and as a result, there was no legal duty owed to Aalyah. They further asserted that any cause of action would be barred by landowner immunity under Arkansas Code Annotated section 18-11-305 (Repl. 2015).
On November 16, 2015, the administrators amended their complaint to allege that a partially submerged truck-bed liner located at the edge of the pond had created a trap or hidden inherent danger and that defendants were negligent in placing the truck-bed liner there, or at least in allowing the submerged truck-bed liner to remain in the pond, when they knew or should have known that children went onto the property and played in and around the pond where the truck-bed liner was located. On the same date, the administrators responded to the defendants’ motion to dismiss. They submitted supporting documents (photographs of the pond and truck-bed liner, a police report, and defendants’ answers to requests for admission), explained how they had stated claims for which relief Ucould be granted under Arkansas law, and stated that a jury should determine, any unanswered material fact questions that this .case presented.
On November 24, 2015, the defendants filed an answer and moved to dismiss the amended complaint pursuant to Rule 12(b)(6). They argued that “because a pond and truck bed liner are not attractive nuisances under Arkansas law,” and “[i]n addition, any cause of action is barred by landowner immunity” pursuant to Arkansas Code annotated section 18-11-305, the case should be dismissed.
On December 7, 2015, the administrators responded to the motion to dismiss the amended complaint, essentially reasserted their position that whether the truck-bed liner functioned as a trap or hidden danger was a question for the jury, and explained why the recreational-use immunity statute did not apply.
On January 14, 2016, the trial court dismissed the amended complaint, “after having reviewed the pleadings and briefs filed by the parties, based on the reasons set forth in the motion and supporting briefs.” This appeal followed, with the administrators contending the trial court erred in dismissing their consolidated complaints because genuine issues of disputed material facts existed regarding the application of the attractive-nuisance doctrine and the alleged negligence of appellees; they also contested whether the recreational-use statute could apply under these circumstances. We affirm the dismissal.
According to the facts alleged in the pleadings and exhibits the administrators submitted with their responses to the motions to dismiss, on the day Aalyah drowned, she was playing “tag” with other children on and around a truck-bed liner that was partially submerged in the retention pond. She was “tagged” by a playmate, fell in the deeper water |4surrounding the liner, and drowned. The pond was located in a vacant lot about 700 feet from the apartment complex where Aalyah lived in Springdale, Arkansas. According to the administrators’ theory of the case, Aalyah and the other children were attracted to the truck-bed liner, and the “bed liner conveyed a definitive message, and that message was incorrect, misleading and deadly to Aalyah,” i.e., that the pond was shallower near the bed liner than it actually was. Aalyah’s body was recovered from the pond in six to seven feet of water approximately fifteen feet north of the spot on the south bank where the truck-bed liner was located. According to a police report, which was not objected to when submitted in response to the motion to dismiss, there were footprints around the area where the truck-bed liner was located, and the water near the liner was muddier than the rest of the pond.
The administrators alleged that the defendant landowners negligently allowed a partially submerged truck-bed liner to remain in the pond, creating the illusion that the pond was shallower than it really was, and that Aalyah was not aware of the hazardous condition and ultimately fell into the deep area and drowned. As we have mentioned, they asserted liability based on the attractive-nuisance doctrine and general negligence.
The summary disposal of this case was initiated with a Rule 12(b)(6) motion. The order of dismissal merely states: “[AJfter having reviewed the pleadings and briefs filed by the parties, based on the reasons set forth in the motion and supporting briefs, the court finds that the Motion to Dismiss Amended Complaint should be and hereby is granted.” The parties agree, however, that the Rule 12(b)(6) motion was converted to an issue of summary judgment because the trial court was also presented with evidentiary items that were not expressly excluded.
|In reviewing summary-judgment cases, our court need only decide if the trial court’s grant of summary judgment was appropriate based, on whether the evidence presented by the moving party left a material question of" fact unanswered. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and ..any doubts must be resolved against .the moving party. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show 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. Id. Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Id. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Id. We have further stated that summary judgment, should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Id. The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Johnson v. De Kros, 2014 Ark. App. 254, 435 S.W.3d 19.
For the first point of appeal, the administrators contend the trial court erred in concluding the attractive-nuisance doctrine did not apply to this case. We disagree.
The administrators contend that they were pursuing two “independent but complementary elements” of the attractive-nuisance doctrine: 1) that the bed liner itself, 1 ^resting on the pond, was an attractive nuisance and 2) that the pond contained a trap or hidden danger in the form of the bed liner and its positioning on the pond that allowed recovery as an- attractive nuisance. In other words, this case does not involve a body of water “by itself’; it involves an additional element of attraction (the liner), and it also involves a hidden danger or trap (the liner'). We are not persuaded that the truck-bed liner itself was the attractive nuisance. Therefore, we will concentrate on the liner/pond combination because that is what this case is really about.
In Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 472, 299 S.W.2d 198, 199 (1957), our supreme court explained the attractive-nuisance doctrine:
Broadly stated, the doctrine embraces the' proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous-to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to. .the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction.
The Carmichael court was confronted for the first time with the issue of “whether the attractive nuisance doctrine [was] applicable to a pond under a situation similar to that presented here.” Id. The pond in Carmichael had existed for at least fifty years; it was lined with sweet gum trees and smaller willow trees; there was a large rock at the eastern edge; small fish lived in the pond; it was unenclosed and children from the heavily populated area congregated there in the shade of the trees and on the large rock to watch and throw rocks at the fish; and while parents in the area cautioned their children against playing around the pond, they had difficulty keeping them. away. The court explained that the
weight.of authority in this country is to the effect " that ponds, lakes, streams, reservoirs, and other bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger. See 56 Am, Jur., Waters, Sec. 436, where 17the textwriter further says: ‘In some cases, the .view has been taken that the proprietor may be held liable where some additional or unusual element of danger is involved in the situation as where the pond or pool is in close proximity to a highway or a playground, or where it is located in an urban or densely populated community, but the weight of authority appears to hold to’ the contrary,. except where the facts bring the-case within the rule respecting pitfalls or hazards adjacent to highways.’ Since water hazards exist everywhere, the tendency of a majority of the courts Which recognize thé attractive nuisance doctrine under other circumstances, is to refuse to apply it to permit recovery for the drowning of a child in a pond or other body of water unless it constitutes a trap or there is some other hidden inherent danger.
Id. at 473, 299 S.W.2d at 200 (citations omitted). The court concluded that since the evidence , indicated they were dealing with a natural condition in the case at bar, it was unnecessary .to determine whether the court would subscribe to the minority view, in which “a few jurisdictions hold that an ordinary pond, artificially created, can constitute such an attractive nuisance as to impose liability on the landowner for the drowning of a child therein.” Id. at 474, 299 S.W.2d at 200. The court distinguished its earlier case of Brinkley Car Works & Manufacturing Co. v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895), explaining that it “involved unusual, elements of danger and artificial features which point up the natural characteristics of the pond involved in the instant ease. This-pond [in Carmichael] is "not unusually dangerous and contained no trap or hidden hazard which the immature mind would be unlikely to appreciate.” Carmichael, 227 Ark. at 474, 299 S.W.2d at 200-01.
In the Brinkley case, the court reversed a plaintiffs judgment and remanded the case for a new trial based on erroneous instructions given to the jury. Thé surrounding facts of the six-year-old plaintiffs scalding injuries were in part:
The appellee, who was about six years old, play[ed] around it, walked into the water, and was scalded.'
It was shown that the mill and "the pool were on the private grounds of'the appellant, and were about 300 feet from the néarest'street or traveled way in thé "town of Brinkley. It was also shown that children sometimes played, on Sundays, on the pile of sawdust at the mill, which was about 150 feet from the water; that this reservoir might have been covered without inconvenience. There was some evidence tending to show that children were not allowed to play around the sawdust pile, and that they had not, before the day of the injury, ever been seen at the pool; that the pool was partially covered with bark, but that the water was clear," and could be seen; that no pathway ran over these grounds.' It was not alleged in the complaint, or shown in the evidence, that this pool of water-was known to-‘children before the day of the injury, or that it or its immediate surroundings were attractive to children. ,
The complaint alleged “that defendant negligently and carelessly failed and neglected to cover and [ejnclose said pit, or post any notices or sign indicating that it contained boding water, but negligently and carelessly and wantonly deposited in said pit pieces of bark from the logs or timber brought to its yards, which said pieces of bark congregated and floated so thickly on the top of the boiling water in said pit .that persons passing .near it could not see the water in said pit,” and then that the plaintiff, not being able to see the water, walked into it, and was scalded.
It appeared that when the watchman let the water out of the boiler his little son and the plaintiff were present, and that he cautioned them not to go about the water, as it was hot.
60 Ark. at 546, 31 S.W. at 154. The Brinkley court went on to explain:
The jury should have been instructed in this case that in determining whether the defendant was liable or not for the injury received by the child, they should consider whether it appeared from' the evidence that the pool of water in which he was scalded was attractive to children of the age of appellee, and whether this was or ought to have been known to the appellant, and whether, from all the circumstances in evidence, it appeared that the appellant, as a reasonably prudent person, ought to have anticipated that children of the age of the plaintiff would probably receive such injury as the plaintiff did receive, by reason of the situation and. condition of the pool of water at the time the plaintiff received his injury. Children are required to exercise only such care and prudence as may reasonably be expected of those who possess only the intelligence and maturity of judgment which .they possess. The owner of land is not required to provide against remote and improbable injuries to children trespassing thereon. But he is liable for injuries to children trespassing upon his private grounds, when, it is known to him that they are accustomed to go upon it, and that, from the peculiar nature, and exposed and open condition, of something thereon, which is attractive to children, he ought reasonably to anticipate such an injury to a child as that which actually occurs.
|fl“It would put the proprietors of real estate under an oppressive burden, to make them insurers against remote and improbable injuries to children while trespassing thereon.” .
60 Ark. at 548-49, 31 S.W. at 155 (citations omitted).
In Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465 (1964), our supreme court affirmed the grant of summary judgment in a situation involving three children who had drowned in a pond. The case highlights the general rule that bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger; noting, however, that if a pond or other body of water constituted a trap or there was some other hidden inherent danger, the attractive-nuisance doctrine would apply. The court considered whether a bag swing located 150 feet north of the pond or an old boat located on the opposite shore of where the bodies were found constituted traps or hidden dangers. The court noted that nothing indicated the boat or bag swing contributed, to the tragedy but that “even if’.it could, be said they were instrumental in attracting the children to the pond to play, “still that would not be sufficient to make applicable the attractive nuisance doctrine.” Id. at 505, 374 S.W.2d at 468. The opinion then listed several cases from other jurisdictions holding the attractive-nuisance doctrine inapplicable—some of which involved floating, rafts, boards, logs, and planks that children slipped off and into the water. The supreme court concluded that the facts of the Comer case did not bring it within the attractive-nub sanee doctrine and affirmed the summary-judgment.
This appeal boils down to whether the partially submerged truck-bed liner sufficiently obscured the nature of the otherwise open-and-obvious pond to create a jury question on whether it constituted a dangerous instrumentality that was attractive to | mchildren and about which they could not have realized or appreciated the danger. We have concluded it did not, and the trial court did not err in dismissing this case. The truck-bed liner, although partially submerged, was not hidden, and it did not mask the inherently dangerous nature of the pond, which was open and obvious.
For their second point of appeal, the administrators contend that the trial court also erred in dismissing the complaint’s negligence claims. We disagree.
There are three general categories of entrants upon the land of another: trespassers, licensees, and invitees. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). The administrators of Aalyah’s estate argue that questions of fact existed regarding her status as a licensee because the defendants knew or reasonably should have known that children frequented the premises because the pond was located approximately 700 feet from an apartment complex where young children played, and the land owners did nothing to prevent, deter, or keep the children off the premises. They further argue that these questions of fact relate to the duty owed to Aalyah because if the jury were to find that she was a licensee on the property, the duty owed would be reasonable care and there would also be questions of fact regarding whether the property owners breached their duty to her by not taking measures to secure the area.
The problem here is that even if the jury were to conclude that Aalyah was a licensee rather than a trespasser, a question we do not decide, the facts presented to the trial court still support its dismissal of the negligence claims. A licensee is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Bader; supra. No duty is owed a licensee until the | ^licensee's presence on the property is known or reasonably should be known, Kirkwood v. Dial, 2013 Ark. App. 536, and once the presence is known, the duty owed to the licensee is to refrain from injuring the licensee through willful or wanton conduct. Id. To constitute willful or wanton conduct, there must be a course of action that shows a deliberate intent to harm or utter indifference to, or conscious disregard of, the safety of others. Id. If the landowner knows or has reason to know of a condition on the premises that is not open and obvious and that creates an unreasonable risk of harm to the licensee, the landowner is under the duty to use ordinary care and to make the condition safe or to warn those licensees who do not know or have reason to know of the danger. Id.
Here, the proof submitted to the trial court did not establish that the landowners knew or should have known Aalyah and the other children were on the property. Moreover, even if that fact had been established, for the reasons previously discussed with respect to the inapplicability of the attractive-nuisance doctrine, there was no condition on the land that was not open and obvious. Consequently, even if Aalyah were found to be a licensee, the duty owed to her was to refrain from causing her injury by willful or wanton conduct. No allegations of willful or wanton conduct by the defendant landowners were pleaded. No proof of such conduct was presented to the trial court. We therefore find no basis to reverse the trial court’s dismissal of the negligence claims.
Finally, because we have found no error in the trial court’s judgment against the attractive-nuisance and negligence claims for the reasons previously discussed, it is not necessary to address the landowners’ alternative contention that those claims would nevertheless fail under the immunity provided to landowners under Arkansas Code [ ^Annotated section 18-11-305, which is part of the Arkansas Recreational Use Statutes. Ark. Code Ann. §§ 18-11-301 to - 307.
Affirmed.
Abramson, Harrison, and Hixson, JJ., agree.
Virden and Murphy, JJ., dissent. | [
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RAYMOND R. ABRAMSON, Judge
| ] Ryan Goodwin appeals a Sebastian County Circuit Court order holding him in civil contempt and directing him to pay $45,007.96 to his former wife, Stephanie Goodwin. On appeal, Ryan argues that (1) the circuit court erred in ordering him to pay Stephanie $45,007.96 because the court had no authority under Arkansas Rule of Civil Procedure 60(c) to modify the division of property from the divorce decree more than ninety days after its entry and (2) the circuit court’s finding that he failed to distribute to Stephanie her equal share of the parties’ gold-coin collection was against the preponderance of the evidence. We affirm.
Ryan and Stephanie married on December 18, 2004. During their marriage, they acquired a gold-coin collection. The parties separated on September 12, 2012, and on November 20, 2012, Stephanie filed a complaint for divorce.
|aOn November 21, 2013, the parties held depositions. Ryan testified that, “To my knowledge, there are currently 30 coins,” and he agreed that they should be divided equally between him and Stephanie. On April 29, 2014, on agreement of the parties, the circuit court entered a divorce decree, which provided, in part, that the parties “shall ... divide the gold coins equally.”
On May 14, 2015, Stephanie filed motions to modify the decree and for contempt. She alleged that following the entry of the divorce decree, she discovered that Ryan had transferred or sold several coins, which resulted in an unequal division of the coins. She asked the court to order Ryan to transfer 69 gold coins to her.
On October 19, 2015, the court held a hearing on Stéphanie’s motions. Stephanie testified that during their marriage, she and Ryan acquired 162 gold coins. Specifically, she testified that they bought 50 Saint Gauden coins, 100 Liberty coins, one Trade Dollar coin, and a set of 11 coins for their children. She stated that during their marriage, they sold between 12 and 16 of the 162 coins; thus, she believed they had between 135 and 139 coins remaining at the time they separated and at the time she filed her divorce complaint. Stephanie explained that when they separated, Ryan changed the combination to the safe where they kept the coins and gave her only 28 or 29 coins.
During her testimony, Stephanie introduced into evidence four exhibits documenting the purchase and sale of the coins. Exhibit one is an invoice from Swiss America Trading Corp. (“Swiss America”) dated March 28, 2007, which shows that Stephanie and Ryan bought 161 coins totaling $194,745. Exhibit two is a spreadsheet report that Stephanie created that shows the number of coins that she and Ryan bought and sold |sduring the marriage. The report indicates that between December 27, 2011, and August 15, 2012, she and Ryan sold between 12 and 16 of the 162 coins. The report shows that Stephanie and Ryan sold the coins for $21,286, but it does not show the number of coins actually sold. Exhibit three is a December 19, 2011 receipt from Swiss America that shows that they sold six Liberty coins. Exhibit four is a portfolio from Swiss America that shows that on July 18, 2007, Stephanie and Ryan purchased a Trade Dollar coin.
Ryan testified that he did not know how many coins he and Stephanie owned at the time they separated but guessed around 70 coins. He explained that during the marriage, he sold around 70 coins at gun shows and coin shows without Stephanie’s knowledge. However, he offered no evidence of proceeds from those sales. He stated that when Stephanie filed for a divorce, he moved the remaining coins from their safe and safe-deposit box to his family’s and friends’ houses. Ryan denied withholding any coins. He stated that he gave Stephanie half of the coins they owned at the time of their separation and that Stephanie never complained to him about the number she received until she filed the current motions.
Following Ryan’s testimony, Stephanie’s attorney recalled Stephanie. She testified that on December 19, 2014, she informed Ryan that she believed he had withheld coins and then repeatedly requested him to distribute her share. She had no knowledge that Ryan had sold additional coins outside of Swiss America and pointed out that they should have had substantial cash deposits after the sales, which they did not.
Following the hearing, on November 6, 2015, the court entered an order holding Ryan in civil contempt and directing him to pay Stephanie $45,007.96. The court found | ¿that the parties possessed 129 coins at the time of their separation, not including the children’s coins, and that Ryan failed to distribute half of the coins to Stephanie as provided in their divorce decree. The court found that Stephanie had received only 29 coins and that the $45,007.96 represented the value of the 35.5 remaining coins. The court found Stephanie’s “testimony ... more credible than Ryan Goodwin’s testimony based on his demeanor, varying accounts as to the number and whereabouts of the gold coins ... and contradictions with his November 2013 deposition.” The court also found that “the documentary evidence supported] Stephanie Goodwin’s testimony and version of events.” Following the entry of the court’s order, Ryan filed his notice of appeal.
Ryan first argues that the circuit court erred in ordering him to pay Stephanie $45,007.96 because the court had no authority under Arkansas Rule of Civil Procedure 60(c) to modify the division of property from the divorce decree more than ninety days after its entry. We find Ryan’s argument meritless. The court did not modify the decree; rather, the court held Ryan in civil contempt for failing to distribute to Stephanie her equal share of the gold coins as set forth in the decree. Accordingly, we reject Ryan’s argument.
Ryan next argues that the court’s finding that he failed to distribute to Stephanie her equal share of the coins was against the preponderance of the evidence. He concedes that the decree provided that the coins be divided equally and recognizes that he and Stephanie acquired around 161 coins during their marriage, which included the children’s coins. |fiHowever, he asserts that he sold “roughly 70” coins during the marriage and that Stephanie received her share of the remaining coins at the time of their divorce.
We will not reverse a circuit court’s finding of civil contempt unless it is clearly against the preponderance of the evidence. Williams v. Arnold, 2015 Ark. App. 715, 479 S.W.3d 56. A finding is clearly against the preponderance of the evidence if, 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. Catt v. Catt, 2014 Ark. App. 616, 2014 WL 5697149. In our review, we defer to the superior position of the circuit judge to determine the credibility of witnesses and the weight to be given their testimony. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15.
We hold that the circuit court’s finding that Ryan failed to distribute to Stephanie her equal share of the coins was not clearly against the preponderance of the evidence. Stephanie presented evidence that she and Ryan acquired 162 coins during the marriage, that 11 coins were for the children, and that they sold between 12 and 16 coins during the marriage; yet, she received only 29 coins when they divorced. Ryan asserts that this evidence is insufficient because the court erroneously ignored his testimony that he sold 70 additional coins during the marriage. However, Ryan offered no evidence reflecting the sale of any coins or the disposition of any proceeds, and the circuit court specifically found Stephanie’s testimony more credible than Ryan’s testimony. Accordingly, we hold that the court’s finding was not clearly against the preponderance of the evidence.
IfrAffirmed.
Vaught and Brown, JJ., agree.
. The court derived a per-coin average valuation of $1,267.83 based on the values re-fleeted in Stephanie’s documentary evidence.
. Ryan also argues that the court erred in determining the value of the coins because the parties presented no evidence concerning their worth. However, Stephanie's documentary evidence showed the amounts for which they bought and sold coins, and the court specifically stated in its order that it based its valuation on that evidence. | [
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SHAWN A. WOMACK, Associate Justice
11 Charles Beverage appeals from the Jefferson County Circuit Court’s order denying his petition for postconviction relief due to ineffective assistance of counsel under Arkansas Rule of Criminal Procedure 37.1 (2015). He filed his petition for relief after pleading guilty to charges from several different cases including first-degree murder, aggravated robbery, first-degree escape, second-degree battery, and theft of property. Beverage argues that, because his counsel’s failure to request a competency hearing was both deficient and prejudicial, the circuit court erred in denying his petition. For the reasons set out below, we affirm the circuit court’s denial of Beverage’s petition.
I. Facts and Procedural History
Beverage and two other inmates escaped from a juvenile detention center in January 2010. During the escape, Beverage assaulted a guard and caused the officer’s fatal heart attack. Beverage also assaulted additional employees and stole a vehicle in connection with | 2the escape. The remainder of the charges stem from attacks on corrections officers while Beverage was in custody.
Beverage’s trial counsel filed an initial motion for mental evaluation after Beverage had been charged. The circuit court granted the motion. Dr. William Cochran evaluated Beverage and determined that he was competent to stand trial. Upon receiving that report, Beverage’s counsel filed a motion for a supplementary forensic evaluation. The circuit court granted that motion as well. Ron Faupel, a psychologist, also concluded that Beverage was fit to stand trial. Two months later, Dr. Jill Brush-Strode reached the same determination; Beverage failed Dr. Brush-Strode’s competency test, but she concluded this was due to his feigning a lack of understanding. Beverage’s counsel retained Dr. Albert Kittrell to testify about Beverage’s chances for rehabilitation. Dr. Kittrell did not conduct his own evaluation of Beverage’s fitness for trial, but he stated that he agreed with the prior evaluators’ reports.
Beverage pleaded guilty on September 7, 2012, and was sentenced to 600 months’ imprisonment. He filed his motion for post-conviction relief on several grounds, including the instant claim of ineffective assistance of counsel due to his counsel’s failure to request a competency hearing. The circuit court denied the petition, and this court reversed and remanded to the circuit court to conduct an evidentiary hearing in light of a gap in the record. In addition to resolving that issue on remand, the circuit court heard testimony from Beverage’s mother, who asserted that she had given trial counsel a cache of medical documents that he did not review.
The circuit court again denied relief on Beverage’s petition. It explained that, in light of the independent judgment of three medical professionals and the agreement of Beverage’s |aown witness that he was competent to stand trial, his trial counsel made a reasonable decision not to pursue the competency question further, and that decision did not prejudice Beverage.
II. Analysis
We review circuit court decisions on Rule 37 petitions for clear error. Adkins v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed. Id. This court has adopted the United States Supreme Court’s test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether or not counsel was ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland test requires both (1) that the petitioner’s counsel’s performance was deficient and (2) that the petitioner was prejudiced by that deficient performance. Strain v. State, 2012 Ark. 42, at 2, 394 S.W.3d 294, 297 (per curiam).
Beverage’s arguments on appeal all concern his trial counsel’s failure to request a competency hearing. In order to show that trial counsel’s failure to request a competency hearing was deficient, Beverage must point to errors that are outside “the wide range of reasonable professional assistance.” See, e.g., Russell v. State, 2016 Ark. 190, at 2, 490 S.W.3d 654, 658. In order to satisfy the second prong of Strickland, that he was prejudiced, Beverage must demonstrate that there was a reasonable probability he would have been found incompetent to plead guilty if the request had been made. See, e.g., Henson v. State, 2011 Ark. 375, at 3, 2011 WL 4396979 (citing Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003)).
^Failing either prong of Strickland is independently fatal to a Rule 37.1 petition. See, e.g., Pennington v. State, 2013 Ark. 39, at 2, 2013 WL 485660 (per cu-riam). We see nothing to indicate that the circuit court clearly erred in finding that Beverage was not prejudiced by his trial counsel’s decision not to request a competency hearing. Beverage’s attorney moved for and received an initial evaluation, a second opinion, and a third opinion from different medical professionals on the issue of his client’s competency. A fourth medical professional—Beverage’s own witness—agreed with the prior medical assessments that Beverage was legally competent to stand trial and, consequently, to plead guilty. With three independent evaluations yielding opinions that Beverage was competent, there is simply no plausible contention that an additional hearing would have resulted in a ruling that he was incompetent.
When a Rule 37.1 petitioner claims that trial counsel prejudiced the petitioner by failing to press for an additional hearing or raise additional evidence on the issue of competency, we have held that it is the burden of the petitioner to demonstrate that “additional evidence would have negated findings already presented.” See Campbell v. State, 283 Ark. 12, 15, 670 S.W.2d 800, 802 (1984). For additional evidence of incompetence, Beverage submits (1) stray comments from the same medical reports that ultimately concluded he was competent and (2) the box—full, Beverage claims, of medical documents—that Beverage’s mother had given trial counsel before Beverage entered his plea. As with Campbell, it is the burden of the petitioner to “show how the evidence of his prior history ... would have negated the findings of the evaluation that had already been presented.” Id. Because Beverage did not identify how any medical records would have IfiQvercome the independent determinations of his three medical evaluators, the circuit court did not clearly err in determining Beverage was not prejudiced by his trial counsel’s decision not to request a competency hearing.
III. Conclusion
Because Beverage failed to demonstrate that any deficiency by his trial counsel was prejudicial to him, he did not satisfy the Strickland test for ineflfective-assistance-of-counsel claims under Rule 37.1 of the Arkansas Rules of Criminal Procedure. We hold that the circuit court did not clearly err in denying his petition.
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RITA W. GRUBER, Chief Judge
| ,This case concerns the authority of a landlord to sell a tenant’s property after the termination of their lease. Appellant, Patricia Derrick, appeals from an order of the White County Circuit Court granting her former landlord’s motion for summary judgment and dismissing appellant’s complaint. In her complaint, appellant asked the court for the return of her property or damages'to compensate her for the value of property that had been sold by appellee Ruth Ellen Haynie. We affirm the circuit court’s order.
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a ^matter of law. Mitchell v. Lincoln, 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. at 597, 237 S.W.3d at 458. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. Ordinarily, we view the evidence in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000). However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Lopez v. United Auto. Ins. Co., 2013 Ark. App. 246, at 5, 427 S.W.3d 154, 157, As to issues of law presented, our review is de novo. Preston v. Stoops, 373 Ark. 591, 593, 285 S.W.3d 606, 609 (2008).
The parties do not dispute most of the relevant facts. Pursuant to an oral agreement entered into in November 2011, appellant rented an office building in Beebe from appellee on a month-to-month tenancy in which appellant operated an online antique-sales business and kept inventory. On October 29, 2014, appellant was personally served at her home with a “Notice of Termination of Month to Month Tenancy” (the Notice). The Notice was signed by appellee’s attorney, indicated that the attorney represented appellee, and stated the following:
Please understand that the tenancy from month to month on the referenced property that you rent from Ruth Haynie ends December 1,2014. You must vacate the |sreferenced property no later than December 1, 2014, removing all items of personal property that belong to you located -within the structure on said property no later than December 1, 2014. - •
Depositions of both parties were attached to appellee’s motion for summary judgment. Appellant admitted in her deposition that she received the Notice at her home on October 29, 2014, and that, after having received the Notice, she told her son about it. Appellant testified that she was not feeling well during November. She did not remove anyproperty from the building.
Appellee testified in her deposition that she had attempted to contact appellant by letter and by phone and had left numerous messages in September and October to resolve certain insurance .issues but that appellant had never responded. Being unable to reach appellant, appellee sent the Notice. Appellee testified that, after appellant had failed to remove her property, the owner of a flea market across the street from the office building made a $1200 offer for all of the inventory, which appellee did not accept. Appellee said that she then sold the inventory to the subsequent tenant for $3000 in early December, sometime between December 3 and December 10.
On- February 12, 2015, appellant filed a complaint against appellee asking the court to issue a writ of possession for her property to be returned or, in the event it could not be returned, for a judgment- of $261,000 in damages for conversion. Appel-lee filed a motion for summary judgment, attaching the depositions and arguing that she was entitled to judgment as a matter of law pursuant to Ark. Code Ann. § 18-16-108, which governs property left on premises after the termination of a lease. The court held a hearing and granted ap-pellee’s 14motion, finding that the lease had been terminated, appellant’s property had been left on the leased premises after termination, and the statute provides that such property is considered abandoned and authorizes the lessor to dispose of it without recourse by the lessee.
On appeal, appellant argues that the circuit court erred in'granting, appel-lee’s motion because there are genuine issues of material fact regarding whether the Notice was appropriate and whether property was “left.” We turn first to her contention that, there are genuine issues of fact regarding the Notice. . The only evi dence in the case demonstrated that the lease was a month-to-month tenancy. Ap-pellee testified that the rent was usually paid “around the 10th of the month.” Ap-pellee also testified that she sent a letter to appellant on September 17, 2014, saying that she wanted her “out” and that appellant was “paid up until October 10th.” Although appellant argues that she paid rent for November, she produced no evidence to show that she had paid and that appel-lee had accepted any' rent for days past October. Appellant admitted that she received the Notice on October 29, 2014, stating that she was to vacate the premises and remove all of her property by December 1, 2014. Thus, the lease was terminated, at the latest, by December 1, 2014. Appellant produced no evidence to prove otherwise. Once the moving party makes a prima facie showing of entitlement, the opposing party may not rest on mere allegations or denials, but must “meet proof with proof’ and set forth specific facts showing that there is a genuine issue for trial. Entmeier v. City of Fort Smith, 2016 Ark. App. 517, at 8, 506 S.W.3d 253, 258. Thus, there was no genuine issue of material fact regarding the propriety of the notice given.
Appellant also argues that there was a genuine issue of material fact regarding whether Rher property had been “abandoned.” She cites caselaw regarding the definitions of “lost property,” “mislaid property,” and “abandoned property.” See, e.g., Terry v. A.D. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001). None of the cases appellant cites are relevant to the facts of this case. Here, a specific statute governs the situation and provides that “[u]pon the voluntary or involuntary termination of any lease agreement, all property left in and about the premises by the lessee shall be considered abandoned and may be disposed of by the lessor as the lessor shall see fit without recourse by the lessee.” Ark. Code Ann. § 18-16-108(a) (Repl. 2015). The statute dictates that the property left on the leased premises at the termination of a lease agreement “shall be considered abandoned.” There is no question of fact to determine. Appellant’s property was left in the leased premises and was therefore “abandoned.” Appellee was free to dispose of it as she saw fit without recourse by appellant.
Affirmed.
Klappenbach and Hixson, JJ., agree.
. The appellees in this case are Ruth Ellen Haynie, individually; the Ruth Ellen Haynie Revocable Trust; and Ruth Ellen Haynie, as Trustee of the Ruth Ellen Haynie Revocable Trust. The parties refer to the appellee in the . singular as Ruth Ellen Haynie, | [
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RAYMOND R. ABRAMSON, Judge
| j Juan Terrones appeals the Pulaski County Circuit Court order terminating his parental rights to his children M.T. and J.T. On appeal, Terrones argues that the circuit court erred in finding that (1) a statutory ground supported termination and (2) it was in the best interest of the children to terminate his parental rights. We affirm.
On July 5, 2015, the Arkansas Department of Human Services (“DHS”) exercised an emergency hold over M.T., J.T., and their half-sibling, K.T., after having received a call that their mother, Kayla Jackson, had been admitted to Baptist Hospital for seizures. At the hospital, Jackson expressed suicidal thoughts and admitted methamphetamine use.
|gOn July 8, 2015, DHS filed a petition for emergency custody. The affidavit attached to the petition stated that DHS had taken an emergency hold of the children based on Jackson’s inability to care for them, Jackson’s history of methamphetamine use, and the lack of another proper caregiver. The affidavit noted that the children had been living with Terrones. On July 8, 2015, the court entered an ex parte order for emergency custody.
On July 14, 2015, the court found probable cause for the emergency custody. The court listed Terrones as the putative father of M.T., J.T., and K.T. and ordered that paternity be established by DNA testing.
On August 27, 2015, the court adjudicated the children dependent-neglected. The court noted DHS’s extensive history with Jackson dating back to 2006. The court found that the children had been subjected to aggravated circumstances in that it was unlikely that services to the family would result in successful reunification within a reasonable time. The court noted that Ter-rones was not believed to be the father of KT. and further noted that he had been on probation for domestic violence against Jackson. The court ordered Terrones to submit to a psychological evaluation, a drug-and-aleohol assessment, and drug- and-alcohol screenings; attend parenting classes; and obtain and maintain stable and appropriate housing. The court noted that Terrones remained married to another woman, Angel Martin, even though he planned to continue his relationship with Jackson. The court advised him to get a divorce.
On November 3, 2015, the court held a permanency-planning hearing, and on December 3, 2015, the court entered a permanency-planning order. In the order, the court noted that DNA tests reflected that Terrones is the biological father of M.T. and J.T. but |snot K.T. The court further noted that Terrones had tested negative on his drug screens. As to Jackson, the court noted that she was pregnant and that she had tested positive on a drug screen. The court found that DHS had made reasonable efforts to provide family services. The court continued the goal as reunification.
On April 5, 2016, the court appointed Terrones an attorney. On that same day, the court held a second permanency-planning hearing. And on May 12, 2016, the court entered a permanency-planning order. In the order, the court found that DHS had made reasonable efforts to provide family services. The court noted that Jackson had a drug screen with no temperature reading in March 2016, which the court found indicated deceit. As to Ter-rones, the court noted that he had tested negative on his drugs screens and had made some efforts to comply with the court’s orders. The court further noted that Terrones had submitted to psychological evaluation but the results were “not favorable.” The court referenced the results of a home study, which stated,
There is also some indication of possible instability within the relationship with [Jackson’s] live-in boyfriend [Terrones] as evidenced by their report of no separations • within their relationship yet there is at least one child fathered by someone other than the boyfriend [Ter-rones] within the reported time that they have been together. There is also possible domestic violence noted between them.
It is questionable if [Jackson] understands the requirements of any legal placement with her mother of her youngest child ... as [Jackson] stated [that] the child will return to her care when the other children are back here. It is also concerning that [Jackson] reports a lengthy history of her mother being an alcoholic who apparently still drinks alcohol although apparently not as significantly as she did during [Jackson’s] childhood.
14 The court again found that the children had been subjected to aggravated circumstances in that it was unlikely that services to the family would result in successful reunification within a reasonable time. The court changed the goal of the case to termination.
DHS filed a petition for termination of Terrones’s parental rights on May 16, 2016, and an amended petition on May 26, 2016. DHS alleged four grounds for termination against Terrones: (1) the failure-to-remedy-conditions-causing-removal ground pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015); (2) the failure-to-remedy-conditions-preventing-placement ground pursuant to Ark. Code Ann. § 9—27—341(b)(3) (B) (i) (6); (3) the aggravated-circumstances ground pursuant to Ark. Code Ann. § 9-27~341(b)(3)(B)(ix)(a)(<3); and (4) the subsequent-factors ground pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). On July 11, 2016, the court entered an order substituting Ter-rones’s counsel because his previous counsel had a conflict of interest.
On July 12, 2016, the court held a termination hearing. Amanda Joshlin, a social worker, testified that on March 21, 2016, she visited the home that Terrones and Jackson shared. She stated that the home was cluttered but not inappropriate; however, she could not complete a full evaluation of the home because that required two visits, and Jackson had failed to schedule a second visit.
Following Joshlin’s testimony, DHS introduced into evidence Terrones’s psychological evaluation. The “impression” section of the evaluation stated the following:
Based on the evaluation, Mr. Terrones is functioning within the lower end of the low average range of intellectual development in comparison to the normed sample. He presented with the intellectual capability to parent. However, a limiting factor is his limited use/comprehension of English.
He minimized trust issues in his relationship with Ms. Jackson. He identified limited awareness and/or appreciation of factors associated with her drug use. His IfiStatement that she is no longer using drugs in tandem with some of the items in the testing is naive.
In my opinion, Mr. Terrones provided limited understanding of Ms. Jackson’s issues and reasons for use other than his assumption that she. uses for fun/reere-ationally. He: had difficulty understanding what medications or prescriptions she is taking and evinced limited understanding of the potential for abuse of medications.
Based on logistical issues in the ultimate care of the children, the elevation on the child domain on the PSI and possible overuse of alcohol (alluded to on the PA1 and elevated defensiveness score on the SASSI-3), Mr. Terrones would be unable to independently parent, in my opinion.
Ancillary involvement would be indicated, however. Additional information regarding his potential for alcohol abuse would be needed.
Mr. Terrones did not appear capable of independent parenting at this point. Developing a plan for the children to be sufficiently monitored and/or supervised would be necessary given [Ms. Jackson’s] penchant for substance abuse. Slow reunification following implementation of the following recommendations would be indicated, as a result.
Felicia Carter, the Pulaski County DHS supervisor, then testified that she recommended terminating Terrones’s parental rights. She testified that Terrones had failed to complete all services. She recognized that he had completed the psychological evaluation and attended individual counseling but noted that he had not completed a drug-and-alcohol assessment and that DHS had made three referrals. She also stated that she had no documentary evidence that he had completed parenting classes. She noted that he had tested negative on all his drug screens but had failed to show for a May drug screen. Carter stated that Terrones had visited the children twelve times since November but after May 18, he had stopped visiting. She testified that Jackson and Terrones had a child on April 15, 2016, S.T., and that S.T. had tested positive for benzodiazepines, amphetamines, and methamphetamine. She also pointed out that Terrones and Jackson are still married to other people and that Terrones is the father of M.T., who was born in 2012, and J.T., who was born in 2015; however, he is not the father of K.T., who was born in 2013.
| (¡Carter stated that her major concern with Terrones is his undocumented-citizenship status. The court then noted that it “would never terminate parental rights because somebody was undocumented, although sometimes being undocumented does add some other issues to be concerned about.” Angela Brown, an adoption specialist, testified that the children are adoptable.
Terrones then testified that he works in construction and averages a forty-hour workweek. He noted that his income is about $2,000 per month. He testified that he had consistently visited his children, and any absences were a result of work. He stated that he had attended three parenting classes and had completed therapy sessions.
Terrones recognized that he and Jackson had another child following the removal of M.T. and J.T. and that the child had tested positive for drugs at birth. He knew Jackson was a drug user, but he had maintained a relationship with her. He explained that when DHS opened the case in July 2015, he was on probation for domestic abuse against Jackson. He blamed her for the dispute. He testified that he and Jackson had ended their relationship about twenty-two days prior to the hearing and that she was now living with another man. He noted that he remained in the house that he and Jackson had shared and that her name is on the lease; he did not know whether his name is also on the lease. He stated that if he received custody of his children, he would not allow Jackson to see them. He explained that his mother-in-law, Jackson’s mother, could help him with the children and that if he had immigration problems, she could care for them. He further noted that he is still married to another woman but he had not spoken to her in five years. He asked the court for additional time to complete the case plan.
17Following the hearing, on August 11, 2016, the court entered an order terminating Terrones’s parental rights based on the failure-to-remedy-conditions-causing-removal, aggravated-circumstances, and subsequent-factors grounds. The court cited Terrones’s psychological evaluation. The court also found that Terrones was not a credible witness and that it did not believe that he had ended his relationship with Jackson. The court further found that it is in the best interest of the children to terminate his parental rights. The court considered the testimony of Brown that the children are adoptable. The court also specifically considered the potential harm to the health and safety of the children caused by returning the children to Ter-rones’s custody.
Following the entry of the termination order, Terrones filed a notice of appeal. On appeal, he argues that the circuit court erred in finding that (1) a statutory ground supported termination and (2) it was in the best interest of the children to terminate his parental rights.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). In determining whether termination is in the child’s best interest, the circuit court must consider the likelihood that the child will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) and (ii). Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B). We do not reverse a termination order unless the circuit court’s Isfindings were clearly erroneous. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).
Terrones argues that the court erred in finding that the failure-to-remedy-conditions-causing-removal, the aggravated-circumstances, and the subsequent-factors grounds supported termination. We first address Terrones’s argument concerning the subsequent-factors ground.
The subsequent-factors ground requires [t]hat 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 parent is contrary to the juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent the placement of the juvenile in the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Accordingly, the subsequent-factors ground for termination consists of multiple elements. Bell v. Ark Dep’t of Human Servs., 2016 Ark. App. 113, 484 S.W.3d 704. First, this ground requires that subsequent issues arose after the original petition had been filed that demonstrate that it is contrary to the juvenile’s health, safety, or welfare to place the juvenile with the parent. Id. Second, appropriate family services must have been offered. Id. Third, there must be evidence that the parent is indifferent or lacks the capacity to remedy the subsequent factors or rehabilitate the parent’s circumstances that prevent placement of the juvenile with that parent. Id. Terrones challenges the second and third elements.
As to the second element, Terrones argues that DHS failed to offer appropriate family services in the form of English classes and assistance in gaining a legal immigration status. |flTerrones concedes that he did not raise the issue to the trial court; however, he argues that DHS has an affirmative duty to prove appropriate services at the termination hearing as proof of the subsequent-factors ground.
This court has held that when a circuit court makes factual findings in an earlier order, DHS does not have an affirmative to duty to reprove factual findings at a termination hearing. See Yarbrough v. Ark. Dep’t of Human Servs., 2016 Ark. App. 429, 501 S.W.3d 839; Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, 474 S.W.3d 510. In this case, at the April 10, 2015 permanency-planning hearing, the circuit court found that DHS had made reasonable efforts to provide services. Thus, DHS did not have to reprove-those findings at the termination hearing.
Terrones asserts that he did not have a meaningful opportunity to object to the court’s appropriate-services finding because he did not have effective counsel until July 11, 2016, the day before the termination hearing. However, Terrones had counsel at the termination hearing. See Yarbrough, 2016 Ark. App. 429, 501 S.W.3d 839 (holding that a parent waived the issue of whether appropriate services were provided to him when he did not object at the termination hearing even though the finding was made at a previous permanency-planning hearing). Further, to any extent that Terrones is making an ineffective-assistance-of-counsel claim, we will not consider a claim for ineffective assistance of counsel unless the issue was first raised in the circuit court. See Taffner v. Ark. Dep’t of Human Servs., 2016 Ark. 231, 493 S.W.3d 319.
As to the third element, Terrones argues that DHS offered insufficient proof that he manifested an indifference or inability to remedy the conditions that prevented placement. | mWe disagree. The evidence showed that Terrones did not complete the case plan, that he maintained a relationship with Jackson throughout the majority of the proceedings, that they had separated only twenty-two days before the hearing, that they had a history of returning to their relationship, and that Jackson posed a serious risk to their children as result of her drug use. Terrones’s psychological evaluation stated that he had a “naive” perception of Jackson’s drug problem, and Jackson and Terrones had a third child born during the pendency of the proceedings who had been exposed to methamphetamine. See Tadlock v. Ark. Dep’t of Human Servs., 2009 Ark. App. 841, 372 S.W.3d 403 (affirming a termination of a father’s rights when he continued his relationship with the mother who had an unresolved drug problem so severe that she tested positive for drugs after giving birth to the child despite having received treatment). Accordingly, we hold that the evidence is sufficient to show that Ter-rones manifested an indifference or inability to remedy the conditions that prevented placement and that the circuit court did not clearly err in finding that the subsequent-factors ground supported termination. Because only one ground is required for termination, we need not address Terrones’s arguments concerning the court’s finding of the failure-to-remedy-conditions-causing-removal and the aggravated-circumstances grounds.
Terrones also argues that the court’s best-interest finding must be reversed. He does not challenge the adopta- bility prong but asserts that the evidence is insufficient to demonstrate a potential harm of returning the children to Ter-rones’s custody.- He complains that the circuit court included only a blanket statement in the termination order that it had considered the potential harm without any elaboration.
In We disagree. The potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or 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 analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. Thus, the court was not required to identify a potential harm that would result by placing the children with Terrones. Moreover, the evidence supporting the subsequent-factors ground also supports the court’s best-interest determination, Accordingly, we hold that the circuit court did not clearly err in finding that termination of Terrones’s parental rights was in the best interest of M.T. and J.T.
Affirmed.
Virden and Gladwin, JJ., agree.
. The circuit court also terminated Jackson’s parental rights. However, she is not a party to this appeal.
. The permanency-planning order does not list Terrones’s counsel as being present at the hearing. | [
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N. MARK KLAPPENBACH, Judge
| ¶ This appeal concerns the entry of summary judgment in favor of a real estate ágent in the lawsuit filed by her clients subsequent to their purchase of a home. The house had settling and other problems that the buyers did not know about until after the sale had been completed, which the buyers blamed on the real estate agent. The trial court granted summary judgment on the tort claims as barred by the three-year statute of limitations and on the breach-of-contract claim because the real estate agent was not a party to the offer-and-acceptance contract between the buyer and seller. We affirm.
The facts are not in material dispute. Appellants David and Dana Hill (collectively “Hill”) bought a house located at 4208 Nobhill Circle in Jonesboro. Hill was represented by La buyer’s agent, appellees Brooksie Felty Hartness and Image Realty LLC (collectively “Hartness”). Hill entered into a real estate contract with the sellers, Martin and Karen Hesch, on September 6, 2010. The offer and acceptance set forth deadlines in which the seller was to provide the seller’s disclosure (three business days after signing the offer and acceptance) and in which the buyer could exercise the right to obtain a home inspection (ten business days after acceptance of the offer). The sellers provided a “Seller Property Disclosure” to Hartness on or about September 8, which indicated settling issues, but Hartness did not provide this disclosure to Hill. Hartness also allegedly told Hill that a home inspection was not necessary because the house was so new and it would be a waste of money. The aforementioned deadlines passed in September. The sale closed on October 15, 2010, after which Hill discovered settling and other problems.
Hill sued Hartness in a complaint filed on October 11, 2013, asserting five causes of action: breach of the real estate contract (the offer and acceptance), violation of the Deceptive Trade Practices Act, fraud, breach of fiduciary duty, and negligence. Hill recited in the complaint that Hartness was bound by Arkansas Real Estate Commission Regulation 10.6, which provides that real-estate agents are required to exert reasonable efforts to ascertain those | ¡¿facts that are material- to the value or desirability of every property so that the agent will be informed about the property’s condition and thus avoid intentional or negligent misrepresentations to the public .about the property. Hill appended the offer-and-acceptance contract and the Arkansas Real Estate Commission Regulations as exhibits to the complaint. Hartness subsequently moved for summary judgment on all counts, asserting primarily that there could be no breach of contract because the real estate agent was not a party to the written real estate contract between the buyer and seller, that this case was essentially a professional-negligence claim, and that the three-year statute of limitations barred the tort claims. Hartness argued that Hill was trying, unsuccessfully, to assert that Hartness was a party to this offer and acceptance to trigger the longer five-year statute of limitations applicable to a breach of a written contract. Hill responded that Hartness was a party to the contract as the buyer’s agent and had duties under the contract to the buyer. Hill argued that, as to the other claims, Hill did not suffer damages until the sale was closed, so the statute of limitations should commence in October 2010, not in September 2010 when Hartness failed in her obligations to her clients. The trial court ultimately granted the motion for summary judgment. Hill appeals.
On appeal, Hill presents two arguments for reversal: (1) that the trial court erred in finding that the statute of limitations had begun to run on the fraud, breach-of-fiduciary-duty, and negligence claims at any time before the October 15, 2010 closing; and (2) that the trial court erred in finding that Hartness was not a party to the written real estate contract in order to trigger a five-year statute of limitations.
|4The standard of review- is well settled. A motion for summary judgment should be granted when, in light of the pleadings and other documents before the circuit court, there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c) (2017). When reviewing whether a motion for summary judgment should have been granted, this court determines whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Flentje v. First, Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). Summary judgment is proper, however, when the .statute of limitations bars an action. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995); IC Corp. v. Hoover Treated Wood Prods., Inc., 2011 Ark. App. 589, 385 S.W.3d 880; Tony Smith Trucking v. Woods & Woods, Ltd., 75 Ark. App. 134, 55 S.W.3d 327 (2001).
Hill’s first argument focuses on when the three-year statute of limitations (SOL) began to run, which Hill contends was on or after the date of closing, October 15, -2010. Hill argues that it is the actual conveyance of the home that triggers the SOL because the buyers were not actually damaged until then. Hartness argues that any alleged wrongful conduct had to have occurred before closing. Hartness asserts that, at the latest, any alleged wrongs committed by Hartness occurred by mid-September 2010, weeks prior to closing, We hold | fjthat the trial court did not err in deeming the “occurrence rule” to apply and therefore did not err in entering summary judgment because the complaint was filed after the expiration of three years from the occurrence of the alleged wrongful acts.
Arkansas Code Annotated section 16-56-105 (Repl. 2005) provides for a three-year statute-of-hmitations period from the accrual of actions based in contract or liability, including unwritten breaches of duty. The statutory-limitations period begins to run when there is a complete and full cause of action and, in the absence of concealment or wrong, when the negligence occurs and not when it is discovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). The same statute applies to claims for negligence, fraud, and breach of fiduciary duty. See Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996); Rice v. Ragsdale, 104 Ark. App. 364, 292 S.W.3d 856 (2009).
Since 1877, our supreme court has consistently held that the three-year limitations period applies to legal malpractice actions, and the accrual is when the negligent act occurs. Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991) (citing White v. Reagan, 32 Ark. 281 (1877)). Hill argues that Chapman is instructive in that it holds that the SOL begins to run for torts upon the occurrence of the last element essential to the cause of action. Hill contends that there were no damages in existence to support a cause of action until the property was conveyed. To accept this argument, however, Arkansas would have to abandon the occurrence rule and adopt the so-called “date of injury” rule. This latter rule provides that the SOL begins to run, not from the occurrence of the negligent act, but rather from the time injury results from the negligent act. Our supreme court has expressly refused to | (¡abrogate the occurrence rule and adopt the “date of injury” rule, and thus the occurrence rule remains. See Moix-McNutt v. Brown, 348 Ark. 518, 522, 74 S.W.3d 612, 614 (2002) (holding that although appellant argued that common sense required that a plaintiff actually suffer a loss or damages arising out of the negligent act before a cause of action arose, this was precisely the argument that the supreme court had repeatedly rejected).
In Chapman, our supreme court explained the application of the commencement of the SOL in legal malpractice (negligence) actions, stating that it is when the negligent act occurs and not when it is discovered; it declined to adopt the “discovery rulé” or “date of injury rule.” Chapman, 307 Ark. at 91, 817 S.W.2d at 427. The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502, S.W.2d 100 (1973). In Flemens v. Harris, 323 Art 421, 427, 915 S.W.2d 685, 689 (1996), the supreme court'applied the occurrence rule when the defendant was an insurance agent alleged to have committed a negligent act “in keeping with our traditional rule in professional malpractice cases.” See also Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 429, 773 S.W.2d 90, 92-93 (1989) (holding that the occurrence rule applied to claim against accountant from date erroneous advice given, not the date a tax-delinquency assess ment was made because of- erroneous advice). The Chapman opinion noted that an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person should not be forced to defend , some alleged act of malpractice that occurred many years ago. Chapman, 307 Ark. at 88-89, 817 S.W.2d at 426. The Chapman ^opinion went on to adhere to the traditional “occurrence rule” despite arguments that this rule was too harsh, noting that such a change in the law should come from the legislature and not the courts. Chapman, 307 Ark. at 89-90, 817 S.W.2d at 426-427; see also Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998); Smith v. Elder, 312 Ark. 384, 392, 849 S.W.2d 513, 517 (1993);Tate v. Lab. Corp. of Am. Holdings, 102 Ark. App. 354, 285 S.W.3d 261 (2008); Morrow Cash Heating & Air, Inc. v. Jackson, 96 Ark. App. 105, 239 S.W.3d 8 (2006). Thus, all the tort claims are time-barred as having “occurred” before closing, and Hill’s first point on appeal holds no merit.
Hill’s second point on appeal is that the trial court erred in finding that Hartness did not breach the written real estate contract. If Hartness was a party to the real estate contract here, then a five-year SOL would apply to allegations of breach of this written contract. See Ark. Code Ann. § 16-56-111. The trial court rejected Hill’s argument and entered Summary judgment on the breach-of-contract claim. Hill’s arguments focus on the contentions that (1) Hartness signed the contract as the buyer’s agent and representative of the real estate company; (2) the contract disclosed to the seller that Hartness was Hill’s agent and responsible to Hill; (3) the contract for the sale "of the Nobhill Circle house entitled Hartness to a commission; and (4) Arkansas Real Estate Commission Regulations require agents to exert reasonable efforts to inform their clients of material facts as to the value or desirability of the subject property, which Hartness did not do. Hill adds that the “gist” of the -complaint clearly ^asserted a breach of this written contract, such that the five-year SOL should apply. Thus, Hill argues that Hartness was a party to the real estate* contract for the sale of the Nobhill Circle house, was subject to obligations under the contract, and' breached the contract, rendering summary judgment inappropriate. We disagree. .
The Arkansas Real Estate Commission Regulations require the agent and the principal/supervising broker to sign the offer and acceptance. 076-00-001 Ark. Code R. § 10.12(b) (Weil 2017). The contract itself shows the “Parties” to be appellants Hill as “Buyer” making an offer to the Hesches as “Seller” to purchase their house. The contract provides notice to both the seller and buyer, that the real estate agent is responsible to the buyer and that “all real estate agents involved in this Real Estate Contract only represent Buyer.” The contract includes a provision in which the “Buyer hereby requests Seller to provide” a written seller’s disclosure form about the condition of the property within three business days. The contract provides that “Buyer shall-have the right” to conduct a home inspection within ten business days. The contract further provides in its “Disclaimer of Reliance” that the “buyer has not and will not rely on any warranties, representations, or statements of seller, listing firm, selling firm, or any agent, independent contractor, or employee associated with those entities ... regarding .,. quality, value or condition of the prop erty.... Listing firm and selling firm cannot give legal advice to buyer or seller. Listing firm and selling firm strongly urge ... condition of property ... should each be independently verified and investigated by buyer or a representative chosen by buyer.” This disclaimer is in all capital letters. At the end of the contract, it also states in all capital letters that “[t]he parties signed below waive their | aright to have an attorney draft this form and have authorized the real estate agent(s) to fill in the blanks on this form.”
It may be that a contract for professional services, written or verbal, exists between Hill and Hartness establishing that Hartness is Hill’s buyer’s agent, but no such contract is alleged to be the basis for this breach-of-contract claim and we do not presume that such a contract exists. The written contract alleged to be the basis for breach of a written contract here is an offer-and-acceptance contract between the buyer and seller.
To prove breach of contract, there must be a valid and enforceable contract between the plaintiff and defendant. A plain reading of this real estate contract demonstrates that, although this is a written contract that contains the signature of real estate agent Hartness, it was a binding contract for the sale of this particular property that created obligations and rights solely between the buyer and seller. A complaint largely predicated on alleged violations of rules of professional conduct cannot be used as a basis for civil liability. Compare Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004) (holding that those rules are to provide guidance to lawyers and to provide a structure for regulatory conduct through disciplinary agencies; no cause of action should arise from a violation, nor should it create any presumption that a legal duty has been breached). In this case, regardless of whether the complaint as a whole sounds in tort or contract (i.e. whatever the “gist” of the complaint), | inHill could not survive the motion for summary judgment on the contract claim because Hartness was not a party to this written contract.
Affirmed.
Gladwin, Vaught, and Brown, JJ., agree.
Virden and Harrison, JJ., dissent.
. Although the appellate record’s caption indicates that the company name is "Image Realty Inc.,” the documents within the record make clear that this entity’s name is "Image Realty LLC.” Hartness is the principal broker of the real estate company. Documents in the record indicate that her last name is not hyphenated.
. The trial court granted summary judgment on the alleged violation of the Deceptive Trade Practices Act on a failure of proof on an essential element. The dismissal of this particular claim is not at issue on appeal.
. Hill also argues, in the alternative, that the breach-of-fiduciary-duty claim is predicated on breach of the written contract, meaning that the longer five-year SOL applies. Our discussion of the second point on appeal is dispositive of this issue.
. Despite the dissenting opinion’s contention to the contrary, our majority opinion has not "created a new substantive rule of contract law in the residential real-estate context.” Our holding addresses whether Hartness was entitled to judgment as a matter of law on breach of this written offer-and-acceptance contract as alleged by Hill.
. The "gist of the complaint” argument relied on by the dissenting judges is unavailing. In Farris v. Conger, 2017 Ark. 83, 512 S.W.3d 631, the alleged breach of written contract was the "Wealth Management Agreement” executed by Farris (the client) and Conger (the wealth manager). This written agreement, attached to the complaint, set forth the obligations between Conger and Farris relating to the management of Farris’s investments. Farris alleged that Conger had failed to perform as promised in the written contract. No comparable written agreement is alleged or presented in this case. | [
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John B. Robbins, Judge.
The Attorney General (AG) appeals a decision of the Arkansas Public Service Commission (Commission), in which the Commission refused to render a finding on the AG’s motion to disclose documents that the Commission had placed under seal by protective order. The AG contends that the Commission failed to make a specific factual determination that the documents were not subject to disclosure as required by Ark. Code Ann. § 23-2-316 (1987) and § 23-2-421(a) (1987). We agree and therefore reverse and remand.
Arkansas Power and Light Company (AP&L) and St. Vincent Infirmary Medical Center (St. Vincent) entered into an incentive rate agreement whereby AP&L offered St. Vincent a special rate in return for St. Vincent’s agreement to continue to purchase its energy needs from AP&L rather than obtain it from co-generation. The agreement required the approval of the Commission, and in July 1992, AP&L filed an application with the Commission requesting that it approve the incentive rate contract. In connection with this proceeding, AP&L filed a motion for a protective order of disclosure pertaining to certain exhibits and work-papers provided by St. Vincent. AP&L claimed that these documents were confidential and disclosure of them could harm St. Vincent and requested that disclosure of the confidential information be limited to persons working directly on this Docket. The Commission’s staff (Staff) responded to AP&L’s motion, stating that it did not object to entry of the protective order but reserving the right to contest it at a future date. The Commission then entered Order No. 1, which granted AP&L’s motion for a protective order. Order No. 1 provided:
On July 13, 1992, Arkansas Power & Light Company (AP&L or Company) and St. Vincent Infirmary Medical Center (St. Vincent) filed in this Docket its Motion For Protective Order Of Non-Disclosure (Motion) pursuant to Ark. Code Ann. Section 23-2-316 and 13.05 of the Commission Rules of Practice and Procedure, requesting that the Commission enter a Protective Order prohibiting any disclosure to the general public .... In their Motion, AP&L and St. Vincent’s state that the exhibits and workpapers contain proprietary, confidential, and sensitive information that has not been previously disclosed by St. Vincent and has been maintained as confidential by AP&L pursuant to contractual commitment and that the release of this material would damage St. Vincent’s competitive position by providing unfair advantage to its competitors. In addition, AP&L and St. Vincent’s allege that the public disclosure of the information contained in the exhibits and workpa-pers may cause security concerns or problems because it contains certain physical descriptions and locations of equipment which is critical to the daily operation of a hospital and to which access is controlled.
On July 21, 1992, Staff filed its Staff Response To. Motion For Protective Order of Non-Disclosure (Staff Response). Staff stated that it will not be able to review the exhibits and workpapers absent a Protective Order. Staff stated that based upon the representation that the information is proprietary, Staff does not object to the Commission entering a Protective Order for the exhibits and workpapers if Staff is reserved the right to contest at a future date, upon reasonable notice, AP&L’s and St. Vincent’s entitlement to a Protective Order for all or portions of the information.
Having considered the matter, it is the finding of the Commission that the Motion For Protective Order For NonDisclosure filed by Arkansas Power & Light Company and St. Vincent Infirmary Medical Center on July 13, 1992, should be granted subject to the reservation of the right to contest Arkansas Power & Light Company’s entitlement to such Protective Order at a later date by Staff.
Subsequent to the entry of Order No. 1, the AG notified the Commission of its intent to participate in the Commission Docket pursuant to Act 39 of 1981. By motion, the AG argued that AP&L and St. Vincent had offered no compelling reasons for shielding the information and that it is in the public interest to make available for public scrutiny the documents from which the public’s rates may be set. The AG requested clarification of Commission Order No. 1 and disclosure of the protected information. The Commission then entered Order No. 6, directing all parties who wished to respond to the AG’s motion to do so by a certain date and scheduling a hearing on the motion. Arkansas Electric Energy Consumers (AEEC) and Arkansas Gas Consumers (AGC) responded that almost all the information the AG sought had already been disclosed and that the remainder of the information should be kept confidential. AP&L and Staff also responded that the AG’s motion should be denied.
At a hearing held on the AG’s motion for disclosure, John Talpas, vice president of manufacturing for Great Lakes Chemical Corporation; Neal Jansonius, of AP&L; and Larry Whitt, senior vice president of engineering for St. Vincent’s Infirmary, testified as to the necessity of maintaining the protective order. Talpas testified regarding a similar protective order, which had been entered when AP&L and Great Lakes Chemical Corporation sought the Commission’s approval of an incentive rate contract. He stated that disclosure to the public of Great Lakes’ protected information would have given its competitors valuable insights into Great Lakes’ operations and methodology, which would have placed Great Lakes at a distinct disadvantage in competitive bidding. He also testified that he would not have pro vided sufficient information to AP&L to allow it to make a co-generation deferral offer if he had known Great Lakes’ protected information could be disclosed.
Neal Jansonius testified that the AP&L tariffs are on file with the Commission; that the rate St. Vincent will be assessed under the proposed contract has also been filed as part of the public record; but that AP&L has always kept confidential the electricity usage of its individual customers. He testified that the purpose of its rate agreement with St. Vincent was to retain St. Vincent as a full requirement customer and that AP&L would lose $1,500,000.00 in revenue if St. Vincent begins co-generation. He also testified that AP&L would lose its ability to negotiate co-generation deferral contracts with its customers in the future if the AG’s motion for disclosure is granted.
Larry Whitt testified that St. Vincent had decided to co-generate its own electrical needs until AP&L offered to enter into the present contract. He stated that, in order for AP&L to offer the special rate, it was necessary for St. Vincent to give AP&L considerable confidential information which he refused to do until AP&L advised him the Commission had authority to issue a protective order. He testified that St. Vincent’s co-generation study, which.the AG wants disclosed to the public, was developed at considerable cost and that energy usage is very detailed in the study. He stated that the data contained in the study could be manipulated to ascertain the costs of certain factors used in delivering a day of patient care and releasing this information would allow all entities competing with St. Vincent to have information not otherwise available to them. This would clearly put St. Vincent’s competitors in a better pricing position than they are now. He further stated that he would have broken off negotiations with AP&L if he had been aware that this information could be disclosed to the public.
Staff agreed with AP&L and St. Vincent that the AG’s motion for disclosure should be denied. Staff counsel Lee McCulloch testified regarding the concerns Staff would have if companies such as St. Vincent are forced to make public information the companies believe they are entitled to keep confidential. He testified that the loss of St. Vincent from the AP&L system would have an immediate and large impact on current AP&L customers and that this possibility causes Staff grave concern for AP&L ratepayers. He stated that Staff’s position is that the Commission should continue to proceed as it has in the past rather than put a chill factor in the mind of certain industries when they look at Arkansas as a place to provide jobs and make their products.
The only testimony the AG offered in support of its motion was that of John Watkins, a professor of law for the University of Arkansas. He testified that, in his opinion, a competitor could not use St. Vincent’s current electrical usage to determine St. Vincent’s costs of delivering a patient a day of care, and the fact that the Commission’s decision in this proceeding may affect electric rates of other AP&L customers plainly points out the public’s interest in disclosure.
On December 23, 1992, after finding the agreement to be in the public interest, the Commission entered Order No. 7, which approved the agreement between AP&L and St. Vincent, but made no finding on the AG’s motion to lift the protective order. The AG petitioned the Commission for rehearing of Order No. 7 to obtain a ruling on his motion, but the petition was deemed denied after thirty days. The AG then filed his notice of appeal.
On appeal, the AG does not contest the Commission’s approval of the incentive rate agreement between AP&L and St. Vincent but appeals the Commission’s refusal to lift its protective order. He contends that the Commission erred in entering the protective order because it failed to make specific findings that the documents are nondisclosable based upon the information in the record and further because the entry of the protective order is not supported by substantial evidence. He argues that, under sections 23-2-421(a) and 23-2-316 and Commission Practice & Procedure Rule 13.05(b), it was necessary for the Commission to find either that it was in the public interest or necessary to protect proprietary facts or trade secrets of the utility in order to seal the documents. Because no such finding was made by the Commission, the AG asserts the issue must be remanded for such a determination.
Arkansas Code Annotated § 23-2-316 concerns records of the Commission and provides:
(a) All facts and information, including all reports, records, files, books, accounts, papers, and memoranda in the possession of the commission, shall be public and open to public inspection at all reasonable times.
(b)(1) Whenever the commission determines it to be necessary in the interest of the public or, as to proprietary facts or trade secrets, in the interest of the utility to withhold such facts and information from the public, the commission shall do so.
(2)The commission may take such action in the nature of, but not limited to, issuing protective orders, temporarily or permanently sealing records, or making other appropriate orders to prevent or otherwise limit public disclosure of facts and information.
Commission Rule 13.05(b) provides the procedure for entering a protective order:
A party seeking a protective order (movant) shall bear the burden of establishing by a preponderance of the evidence that disclosure of the information would have one or more of the following consequences:
(1) The movant could suffer material damage to its competitive or financial position;
(2) A trade secret of the movant would be revealed;
(3) The public interest would be impaired by release of the information;
(4) The information has no relevance to deciding the. issues in the case at hand.
Section 23-2-421 concerns findings and orders of the Commission, and subsection (a) of this section requires that the Commission’s decision be in sufficient detail to enable any court in which any action of the Commission is involved to determine the controverted question presented by the proceeding.
We agree with the AG that the Commission failed to make any factual determination in support of its issuance of a protective order as required by § 23-2-421(a). In Order No. 1, establishing the protective order, the Commission merely recited what AP&L and St. Vincent alleged in their motion and that Staff had no objection to such an order. Assuming without deciding that Order No. 1 was sufficient under § 23-2-421(a) because at the time there was no dispute as to the entry of the protective order, it was not sufficient once the AG contested the protective order.
The Commission argues that its conclusion to issue a protective order is supported by substantial evidence as required by Ark. Code Ann. § 23-2-423(c)(3) (1987). On review, however, this court must determine, not whether the conclusions of the Commission are supported by substantial evidence, but whether its findings of fact are so supported. See Arkansas Pub. Serv. Comm’n v. Continental Tel. Co., 262 Ark. 821, 829, 561 S.W.2d 645, 650 (1978). We must first know what the finding is before we can give it conclusive weight. Id.; AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 131, 843 S.W.2d 855, 858 (1992). Courts cannot perform the reviewing functions assigned to them in the absence of adequate and complete findings by the Commission on all essential elements pertinent to the determination. See Arkansas Pub. Serv. Comm. v. Continental Tel. Co., 262 Ark. at 829, 561 S.W.2d at 649.
The Commission states that the Commission’s expertise, along with Staff’s assertions and the testimony of the witnesses, provide sufficient reason for the issuance of the protective order. An argument similar to this was made without success in Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978), where the supreme court responded:
The commission has urged that the findings are sufficient because there is evidence from which it could reach the conclusions it stated. But it is not the function of the courts to evaluate the evidence, to draw inferences from it or to read its implications into the statement of the ultimate conclusion. The courts are not authorized under a statute like ours to make findings which should have been made by the commission.
262 Ark. at 830, 561 S.W.2d at 650 (citations omitted).
Our decision here is in agreement with other jurisdictions that also require their utility commissions to make findings sufficient for an adequate and meaningful review. See State Utilities Commission v. AT&T Communications of Southern States, Inc., 321 N.C. 586, 364 S.E.2d 386 (1988), where the court held that failure of the commission to include all necessary findings of fact and details is an error of law and a basis for remand under North Carolina law because it frustrates appellate review. Courts cannot perform the reviewing function which the legislature has assigned to them in the absence of adequate findings; it must be possible for the reviewing court to measure the findings against the evidence from which they were educed. Southwestern Bell Tel. Co. v. State Corp. Comm’n, 192 Kan. 39, 386 P.2d 515, 524 (1963). In Town of New Shoreham v. Rhode Island Public Utilities Commission, 464 A.2d 730 (R.I. 1983), the Rhode Island Supreme Court stated:
This court does not sit as a factfinder; our role is “to determine whether the commission’s decision and order are lawful and reasonable and whether its findings are fairly and substantially supported by legal evidence and substantially specific to enable us to ascertain if the facts upon which they are premised afford a reasonable basis for the result reached.” Rhode Island Consumers’ Council v. Smith, 111 R.I. at 277, [302 A.2d 757, 762 (1973)]. However, if the commission fails to set forth sufficiently the findings and the evidentiary basis upon which it rests its decision, we shall not speculate thereon or search the record for supporting evidence or reasons, nor shall we decide what is proper. Instead, we shall remand the case in order to provide the commission an opportunity to fulfill its obligations in a supplementary or additional decision. Id. at 278, 302 A.2d at 763.
Town of New Shoreham v. Rhode Island Pub. Util. Comm’n, 464. A.2d at 732. See also Petition of New England Tel. & Tel. Co., 115 Vt. 494, 66 A.2d 135 (1949), in which the Supreme Court of Vermont held that the requirement that the public service commission make its findings of fact imposes upon the commission the duty to sift the evidence and state the facts, and when the essential findings have not been made, the court is unable to act as factfinder but must instead remand the case for such findings.
Accordingly, we must reverse and remand for a decision based upon findings of fact so that a meaningful review of the Commission’s decision can be made. Because we are remanding for adequate findings, we are unable to address the AG’s second argument that the Commission’s decision is not supported by substantial evidence.
AP&L argues that we should not decide this case because the issue of whether the Commission erred in entering the protective order is now moot. AP&L first notes that, although the AG maintains the protected information should be disclosed to the public, he has refused to review the information even though the Commission’s order allows him to do so. AP&L also notes that the AG has not appealed the Commission’s approval of the rate agreement between it and St. Vincent and, therefore, disclosure of the protected information will have no legal effect.
An issue is moot when it has no legal effect on an existing controversy. Killam v. Texas Oil and Gas Corp., 303 Ark. 547, 556-57, 798 S.W.2d 419, 424 (1990). It is the duty of the court to decide actual controversies by a judgment which can be carried into effect and not give opinions upon abstract propositions or declare principles of law which cannot affect the matter in issue. Netherton v. Baldor Electric Co., 232 Ark. 940, 942, 341 S.W.2d 57, 58 (1960).
We agree with AP&L that disclosure of the protected information in the case at bar cannot affect the outcome of the approval of the contract between AP&L and St. Vincent. Nevertheless, we are convinced that the issue of whether it is in the public interest to protect certain information in this type of proceeding is a question likely to be repeated in future cases. AP&L’s witness Neal Jansonius testified that St. Vincent’s contract is the seventh self-generation deferral contract that the Commission has been asked to approve since 1986. Staff witness Lee McCulloch testified that a specific rate contract will be filed with the Commission for an industry locating in Little Rock which will bring 500 jobs. He stated that, in order to attract the industry to Little Rock, the industry was given a special rate, which the Commission will be asked to approve, and was assured that the information would be kept confidential.
Of course, the issue of whether certain information in a particular proceeding before the Commission should be protected will depend on the facts of each case. Nevertheless, the method by which the Commission grants or denies a protective order is a question of public interest, and for that reason, we have chosen to address the AG’s argument.
Although the appellate court normally decides only cases and controversies which will actually affect the rights of litigants; when an issue is subject to repetition and tends to expire before review can be had, the court may decide a moot issue. Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 515, 780 S.W.2d 539, 540 (1989). See also Colorado-Ute Elec. v. Public Utilities Comm’n of Colorado, 760 P.2d 627, 633 (Colo. 1988), appeal dismissed, 489 U.S. 1061 (1989).
We therefore reverse and remand for findings consistent with this opinion.
Rogers, J., concurs.
Cooper and Mayfield, JJ., dissent. | [
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Melvin Mayfield, Judge.
The issue in this appeal from a decision of the Workers’ Compensation Commission involves the statute of limitations. It was submitted on the following stipulations:
1. The Claimant sustained a compensable injury during the course and scope of his employment on or about October 26, 1987 and his wages were such as to entitle him to a compensation rate in the amount of $189.
2. The Claimant was treated for his back injury by Dr. Edward H. Saer and Dr. Saer assessed a permanent partial impairment rating of 10 percent to the body as a whole on February 7, 1990.
3. Check number 331035-1 from USF&G was sent to Willie Higdon on March 1, 1990 in the amount of $6,930 which paid the 45 weeks of permanent partial disability benefits in a lump sum.
4. The Claimant was seen by Dr. Saer on September 11, 1990, and this bill was paid by the Respondent/Carrier.
5. The Claimant returned to Dr. Saer for treatment on September 11, 1991, and this bill was controverted by the Respondents since the Claimant had not received any medical care or treatment between September 11, 1990, and September 11, 1991. The Respondents deny the charges for the September 11, 1991, office visit based on Ark. Code Ann. § ll-9-702(4)(b) and Cheshire v. Foam Molding Co., 37 Ark. App. 78 (1992).
A claim for additional benefits was filed with the Commission on January 14, 1992.
The administrative law judge held that the statute of limitations began running either on September 11, 1990, the date of the last visit of appellee to Dr. Saer, or on December 18, 1990, which would represent the last date of installment payment if the permanent partial disability benefits had been paid in installments rather than in lump sum. Either way, according to the law judge, the January 1992 filing of the claim was untimely.
The Commission unanimously reversed, stating:
Claimant sustained a compensable injury on October 26, 1987. On February 7, 1990, claimant’s treating physician assessed claimant’s permanent anatomical impairment at 10% to the body as a whole. These permanent disability benefits were paid in a lump sum. However, had the payments been made in installments only as they accrue, the last payment of benefits would have been on December 18, 1990. Thus, pursuant to Southern Cotton Oil Co. v. Friar, 247 Ark. 98, 444 S.W.2d 556 (1969), the statute of limitations commenced to run on December 18, 1990. Claimant returned to see Dr. Saer, his treating physician, on September 11, 1991. Respondent controverted this visit by alleging that the statute of limitations had run. Claimant filed his claim for additional benefits on January 14, 1992.
It is important to remember that respondent did not controvert the September 1991 visit as being unreasonable and unnecessary but solely on the basis of the statute of limitations. If respondent believed this visit to Dr. Saer was unreasonable and/or unnecessary, it could have, and should have, so alleged before the Administrative Law Judge. Thus, we will not remand this case to the Administrative Law Judge for a determination of an issue not raised by respondent, particularly when to do so would be based solely on unsubstantiated, entirely speculative argument. Additionally, respondent does not allege lack of knowledge of this visit. Therefore, the September 1991 visit tolled the statute of limitations until September 1992. The claim for additional benefits filed in January 1992 is easily within the one year statute of limitations.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that this claim for additional benefits is barred by the statute of limitations.
Arkansas Code Annotated Section ll-9-702(b) (1987), provides in pertinent part:
TIME FOR FILING ADDITIONAL COMPENSATION. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
Appellant argues on appeal that the Commission erred in ruling that the claim for additional benefits was timely filed. Appellant contends that the “operative factor” in tolling the statute of limitations is the filing date of the claim and the burden is on the claimant to timely file for additional benefits. It cites St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). While that case does say that the burden is on the claimant to file a timely claim for additional benefits it says nothing about the “operative factor” being the filing date.
Because the claim for additional compensation was filed on January 14, 1992, and the injury occurred on October 26, 1987, obviously more than two years prior to the filing, the question is whether the claim was filed within one year from the date of the last payment of compensation. The last payment of compensation has been equated with the date of the furnishing of medical services. Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968); Phillips v. Bray, 234 Ark. 190, 351 S.W.2d 147 (1961); Cheshire v. Foam Molding Co., 37 Ark. App. 78, 822 S.W.2d 412 (1992).
Appellant concedes that Southern Cotton Oil Co. v. Friar, 247 Ark. 98, 444 S.W.2d 556 (1969), cited by the Commission, holds that the statute of limitations commences to run only from the date the last payment would have been due if the lump sum payment for permanent partial disability had been paid in installments. Even so, appellant argues, the claim for additional benefits would have been untimely because it was not filed until January 14, 1992, more than one year past the December 1990 date of last payment. And appellant contends the Commission erred in holding that the “Claimant’s medical treatment rendered in September of 1991, which Respondent controverted, renewed the one-year period of limitation.”It contends this conflicts with the case law holding that to toll the statute of limitations the employer must have knowingly and voluntarily furnished the medical services. Superior Federal Savings and Loan Assoc. v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979); McFall v. U.S. Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969).
878 S.W.2d 4
The Commission held, however, that appellant’s failure to controvert at the hearing before the administrative law judge the September 1991 visit as unreasonable and unnecessary prevented, under the circumstances here, the issue to be considered in the appeal to the Commission. Therefore, the visit to the doctor tolled the statute of limitations, and the claim for additional benefits filed on January 14, 1992, was timely filed. We find the Commission’s reasoning persuasive.
Affirmed.
Jennings, C.J., and Cooper, J., agree. | [
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Wendell L. Griffen, Judge.
David Barnett has appealed the decision of the Workers’ Compensation Commission that denied his workers’ compensation claim upon a finding that he failed to prove by a preponderance of the evidence that his back injury occurred as the result of a specific incident identifiable in time and place of occurrence. On appeal, Barnett asserts that: 1) the Commission erred in failing to find that he was excused from providing notice of his injury to his employer; 2) he has shown with substantial evidence that he sustained a compensable injury identifiable by time and place of occurrence while working for appellee; 3) he has shown by substantial evidence that his back problems were directly and causally related to his employment; and 4) he has shown by substantial evidence that he is entided to temporary total disability benefits from May 28, 1996, through August 2, 1996. We find no merit in these points and affirm.
Appellant had been employed by appellee for eighteen years as a maintenance worker. On May 28, 1996, appellant was pulling on a water pump when he felt what he termed a “glitch” in his lower back.- He claimed that he told a co-worker, Myron Watts, that he had hurt his back earlier that day, and told his foreman, Doyle Hunter, that he was “down in his back” the following morning. However, appellant did not indicate to the foreman or to anyone else in management that he had sustained a work-related injury. Because of past prostate difficulties, appellant testified that he was not sure whether he had experienced a flare-up of that problem, so he went to the emergency room of a local hospi tal to see his urologist, Dr. Philip Woodward, who admitted him for testing. The urologist later had appellant undergo prostate surgery, but the back pain did not subside. Dr. Woodward decided that the pain was not due to urological problems and requested an orthopedic consultation from Dr. Bruce Smith, an orthopedic surgeon. Dr. Smith diagnosed appellant with a left lateral bulging disc at the L3-4 levels. Appellant continued to see Dr. Smith until he was released to return to work on August 2, 1996.
Appellant filed a workers’ compensation claim on June 24, 1996, seeking disability and medical benefits. Appellee and the insurance carrier controverted the claim in its entirety, contending that appellant did not sustain an injury arising out of and in the course of the employment, alleging that they were not liable for medical treatment obtained before June 24, 1996, due to lack of notice, and contending that appellant was not entitled to temporary total disability payments because he continued receiving his pay during the entire time that he was off work. The administrative law judge (ALJ) found that appellant did not sustain an injury identifiable in time and place of occurrence while working for the respondent, and that he failed to prove, by a preponderance of the credible evidence, that his back problems were directly and causally related to his employment. Barnett appealed to the Commission, which affirmed and adopted the opinion of the ALJ.
Appellant’s first argument on appeal is that the Commission erred in failing to find that appellant was excused from providing notice of his injury to his employer under Arkansas Code Annotated § 11-9-701(b)(1)(B) (Repl. 1996). Appellee correctly points out that it raised this issue below as an alternative argument in the event that the Commission found that appellant’s injury was compensable. Because the Commission found that appellant’s injury was not compensable, it did not address this argument. Where appellant’s abstract has failed to include any arguments made on these issues before the Commission or any portion of the Commission’s order dealing with these issues, we will not address this issue on appeal. Chambers v. International Paper Co., 56 Ark. App. 90, 938 S.W.2d 861 (1997).
Appellant’s second and third assignments of error regarding substantial evidence will be addressed together. Appellant contends that there is substantial evidence showing that he sustained a compensable injury identifiable in time and place of occurrence, and that his back problems were causally related to his employment. The applicable standard of review is whether there is substantial evidence supporting the Commission’s decision.
When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm the Commission’s decision if it is supported by substantial evidence. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue 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. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).
A compensable injury is defined as
an accidental injury causing internal or external harm to the body . . . arising out of and in the course of employment which requires medical services which results in disability or death. An injury is accidental only if it is caused by a specific incident and is identifiable by time and place of occurrence.
Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996). Appellant did not report a work-related injury to either his urologist, Dr. Woodward, or the orthopedist, Dr. Smith. Appellant also waited from May 28 until June 24, 1996, to file a workers’ compensation claim, contending that during that time he was at home in severe pain. Appellant contended that he had told a co-worker, Myron Watts, of his injury the same date that it occurred, but when questioned, Watts could not recall a specific date of the injury. Instead, Watts testified that he recalled appellant telling him that he felt stinging in his back as they were putting a cap on a blow-down stack. In response to questions from the ALJ, Watts testified that the injury occurred while appellant was working with another employee, Otto Crutch, and that after the alleged incident, appellant worked for several weeks.
The foreman, Doyle Hunter, had visited appellant in the hospital while he was recovering from prostate surgery and before he filed a claim for workers’ compensation benefits. Hunter testified that although he visited appellant in the hospital and had spoken with appellant “on several occasions during his recovery,” no work-related incident was ever mentioned by appellant as the possible source of his back problems. Hunter also testified regarding the events that occurred when appellant indicated that he wanted to file a workers’ compensation claim:
He came in and was recovering from the prostate surgery. Said that he needed to go ahead and file a workmen’s comp claim for injuring his back. I asked him then if he wanted to fill it out or wait until the following day, and he said he’d bring it back the next day. But we talked about it and Ms. Barnett was with him. I asked how he had hurt his back, and he said he thought it was pulling on the pump that morning. I had visited him in the hospital and talked to his wife and talked to him on several occasions during his recovery, and it wasn’t brought up. I asked about it then, and he said that Dr. Woodward had, in conversation, had asked him if there’s a possibility he might have hurt his back on the job. And David [appellant] said, “Well, I don’t know.” And David told me that Dr. Woodward told him that, “If you don’t report it as a workmen’s comp claim, you’ll just be hanging out there,” was [sic] David’s words. And I asked David then, I said, “Well, was anybody with you when you hurt, injured your back?” He said no. Later in the day, he had worked with Myron, and I asked David to go ahead and fill out the paperwork. It was that afternoon that I had talked to Otto Crutch and Myron and asked them if they remembered anything at all about David reporting the injury. Both of them, Myron or pardon me, Otto didn’t know anything about it. He wasn’t with him at the time of the —• when he was working on the pump. It was afterwards that he was with — when Otto went over there. Myron told me that the only thing that David had told him was that he had the stinging sensation in his back.
Based on the conflicting testimony, the Commission found that it would require “speculation and conjecture to attribute the Claimant’s back problems with a specific incident identifiable in time and place of occurrence as alleged.” This case hinged on credibility, and it is within the province of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). We cannot say that the Commission erred in finding that appellant failed to prove that he suffered a compensable injury. Appellant’s fourth issue addresses temporary total disability, and need not be addressed, since the Commission’s decision was correct. Therefore, we affirm.
Affirmed.
Rogers and Crabtree, JJ., agree.
Pittman, Arey, and Meads, JJ., dissent. | [
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Karen R. Baker, Judge.
Appellant Ann Wooley appeals the order of the Jefferson County Circuit Court dismissing her wrongful-death and survival action against appellee Continental Eagle Corporation as not having been properly revived within one year as provided by Ark. Code Ann. §§ 16-62-108 and 109 (1987). She also brings up for review the summary judgments in favor of appellees Planters Cotton Oil Mill, Inc. (“Planters”), and Cotton Handlers Manufacturing, Inc. (“Cotton Handlers”). We find no error and affirm.
The facts are not in dispute. In August 1999, the decedent, Raymond Wooley, was on the premises of Planters as an independent contractor to perform electrical work on Planters’s machinery. In order to work on the machinery, decedent placed his ladder next to the machine and climbed to the top of the machine. Decedent fell approximately twenty-five feet and sustained severe head injuries. On January 16, 2003, he died as a result of these injuries. Wooley, in her capacity as the decedent’s wife and next friend, originally filed suit against Planters for decedent’s personal injuries prior to his death. The complaint was subsequently amended to include allegations of negligence against Cotton Handlers, a contractor performing work at the site at the time of the decedent’s accident, and allegations of negligent design, strict liability, and breach of warranty against Continental, the manufacturer of the machine decedent was attempting to repair.
After the trial court granted the motions for summary judgment filed by Planters and Cotton Handlers in separate orders entered on September 4, 2002, the case continued against Continental. Decedent died on January 16, 2003. On August 14, 2003, Wooley amended her complaint to state that she had been appointed administratrix of the decedent’s estate and to assert an additional cause of action for the decedent’s wrongful death. Continental generally denied the allegations and asserted the affirmative defenses of lack of jurisdiction (both personal and subject-matter), insufficiency of process and service of process, and improper venue.
On March 24, 2004, Continental filed a “Motion to Strike and to Dismiss,” alleging that the action abated upon the decedent’s death and that Wooley failed to revive the action within one year as required by Ark. Code Ann. §§ 16-62-108 and 109 (1987). As an exhibit to the motion, Continental attached the affidavit of Earnest Edwards, its vice president of engineering, stating that decedent died on January 16, 2003, and that Continental had not been served with an order reviving the action. On April 8, 2004, Wooley filed a “Motion for Revivor,” asserting that Continental had impliedly consented, or waived any objection, to the revivor by continuing to defend the action without objection and by failing to raise the issue in its answer to the amendment to the complaint following decedent’s death. Continental filed a “Response and Objection to Plaintiffs Motion for Revivor.”
The trial court entered an order finding that Wooley failed to revive the action within one year of the decedent’s death, that Continental did not consent to the revival of the action, and that all claims arising out of the decedent’s accident should be dismissed with prejudice. Wooley filed a motion seeking reconsideration of the dismissal based on Continental’s implicitly consenting, or being estopped from objecting, to the revivor. The trial court denied the motion. This appeal followed.
Wooley raises three points on appeal: that the trial court erred in granting summary judgment to Planters; that the trial court erred in granting summary judgment to Cotton Handlers; and that the trial court erred in granting Continental’s motion to strike and dismiss while denying her motion for revivor. We find the third point dispositive and do not discuss Wooley’s first and second points.
In her third point, Wooley argues that the trial court erred in granting Continental’s motion to strike and dismiss while denying her motion for revivor because she substantially complied with the purposes behind the revivor statute and because Continental implicitly acquiesced in the revivor.
There are three code sections relevant to this point, Ark. Code Ann. §§ 16-62-105, 16-62-108, and 16-62-109 (1987). Section 16-62-105 provides, in pertinent part:
(a) Where one (1) of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survives in favor of or against his representative or successor, the action may be revived and proceed in their names.
(b) The revivor shall be by an order of the court that the action be revived in the names of the representatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them.
(c) The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose powers ceased, suggesting his death or the cessation of his powers, which with the names and capacities of his representative or successor, shall be stated in the order.
(d)(1) If the order is made by the consent of the parties, the action shall forthwith stand revived.
(2) If not made by consent, the order shall be served in the same manner as a summons upon the party adverse to the one making the motion. At the first term commencing not less than ten (10) days after such service, the party on whom it is made may show cause against the revivor. If sufficient cause is not then shown, the cause shall stand revived.
Section 16-62-108 provides, in pertinent part:
An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made. . . .
Section 16-62-109 provides:
When it appears to the court by affidavit that either party to an action has been dead ... for a period so long that the action cannot be revived in the names of his representatives or successor without the consent of both parties, it shall order the action to be stricken from the docket.
The supreme court has uniformly held that the statutes are mandatory in their terms and the revivor, to be effective, must be applied for within the time prescribed by statute. Wilson v. Huggins, 228 Ark. 1115, 314 S.W.2d 694 (1958); Prager v. Wootton, 182 Ark. 37, 30 S.W.2d 845 (1930); Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833 (1905). The supreme court has also construed our statutes so that, when a plaintiff dies, the revivor may be made in the name of his representatives forthwith whether the defendant consents to it or not. Heilig v. Haskins, 192 Ark. 311, 90 S.W.2d 986 (1936); Keffer v. Stuart, 127 Ark. 498, 193 S.W. 83 (1917). The court further said that the statute does not require that the defendant be consulted until after the expiration of one year from the time when the order of the revivor might have been first made but that, after that time, the order of revivor could not be made without the consent of the defendant. Keffer, supra.
The amendment of the complaint to allege Wooley’s appointment as administratrix of the decedent’s estate and the assertion of a cause of action for wrongful death could be construed as a suggestion of death as contemplated by Ark. Code Ann. § 16-62-105(c). However, Wooley did not request an order of revivor in her amended complaint. Further, section 16-62-105(b) provides that the “revivor shall be by an order of the court that the action be revived in the names of the representatives ... of the party who died . . . and proceed in favor of or against them.” (Emphasis added.) See also Higgerson v. Higgerson, 212 Ark. 123, 205 S.W.2d 33 (1947). When interpreting statutory language, for example, our courts have found that the word “shall” in the statute indicates mandatory compliance with the statute’s terms unless compliance would result in an absurdity. See, e.g., Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). There fore, Wooley’s efforts were insufficient to revive the action because no order of revivor was ever entered. Furthermore, the burden to have the action properly revived is on the party seeking the relief from the court. McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973).
Wooley argues that Continental has waived its right to object to the revivor by continuing to participate in discovery and other actions. See Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989); McDonald, supra; Short v. Stephenson, 239 Ark. 287, 388 S.W.2d 912 (1965). However, given the supreme court’s holding that Continental need not have been consulted until one year after the decedent’s death, Keffer, supra, and that Continental raised objections to jurisdiction in its answer, we do not believe that Continental has waived its right to object. Further, Wooley did not specifically seek revivor in the amendment to her complaint filed in August 2003.
Wooley argues that, even if this court holds that Continental had not waived its right to object to the revivor, her wrongful-death action would not be affected. However, our supreme court has recently held that a wrongful-death action is derivative in nature from the original tort and, where the underlying tort action is no longer preserved, the wrongful-death action is barred as well. Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004); Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004); see also Simmons First Nat’l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). The only distinction between the facts in Brown and the present case are that, in Brown, suit was filed and then nonsuited before the second suit was filed and later dismissed for improper service prior to the wrongful-death action being asserted and that the decedent was declared dead by the probate court.
On appeal in Brown, the Arkansas Supreme Court ruled that it “must affirm the trial court’s decision because Brown’s wrongful-death claim was derivative of her negligence action, and the negligence action was subject to dismissal with prejudice.” Brown, 359 Ark. at 474, 199 S.W.3d at 47. As a result, the court said that, because the dismissal with prejudice bars Brown from bringing another negligence suit, she could not file a separate wrongful-death suit since it would be derivative of the right to bring a negligence action. In so ruling, the court noted “for clarity’s sake” that its decision does not mean that Brown’s wrongful-death action was barred by the statute of limitations. To the contrary, the court stated:
[H]ad there not been a dismissal with prejudice of the underlying negligence action, and had Brown simply waited to file the wrongful-death complaint after obtaining the declaration of death from the Probate Court, her action would have been timely, as a wrongful-death action does not arise until the date of the death.
Brown, 359 Ark. at 476, 199 S.W.3d at 49, ri. 2.
Wooley argues that Justice Hannah’s concurrence in Brown suggesting that it was time to reexamine the case law holding that a wrongful-death action is derivative of the decedent’s action for the injuries causing death should be followed. However, we are obliged to follow the majority opinion in Brown as it is the current statement of the law. See, e.g., ALCOA v. Carlisle, 67 Ark. App. 61, 992 S.W.2d 172 (1999); Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998).
As to Planters or Cotton Handlers, after entry of summary judgment in their favor, Wooley admitted that she did not attempt to serve either the amended complaint or the revivor motion on those parties. Therefore, the action abated as to those parties and there is no summary judgment for this court to review. See Higgerson, supra.
Affirmed.
Pittman, C.J., and Crabtree, J., agree. | [
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Larry D. Vaught, Judge.
Anna and John Slavin appeal from the trial court’s decision to grant summary judgment in favor of the Plumbers and Steamfitters Local 29 (the “Local”). Their only argument on appeal is that the trial court erred in holding that John Slavin was a licensee. We disagree and affirm.
On November 3, 2001, John Slavin was a member and executive-committee officer of the Local. The Local had made several announcements to its members that it needed volunteers to help renovate its building, but it had trouble enticing enough members to help with the work. The Local contacted Slavin directly and asked him to volunteer. Slavin agreed to assist with the renovation project, and, while installing insulation in the rafters of the building, he walked across a board, fell, and suffered an injury.
Slavin and his wife filed a negligence lawsuit against the Local claiming that he was an invitee. The Local filed a summary-judgment motion arguing that Slavin was a licensee and that the Local was a joint venture, and, as such, all fault of any one member was imputed to all, including Slavin. The trial court granted summary judgment in favor of the Local, holding that Slavin was a licensee. It declined to rule on the joint-venture issue because it had already held in favor of the Local on the first issue. The Slavins appealed from the court’s order, and the Local filed a cross appeal on the joint-venture issue.
The parties do not dispute the facts of this case and agreed that the decision of whether Slavin was an invitee or licensee was a question of law for the trial court to decide. We conduct a de novo review in cases of this nature. Ark. Dep’t of Human Servs. v. Wellborn, 66 Ark. App. 122, 987 S.W.2d 768 (1999).
An “invitee” is “one induced to come onto property for the business benefit of the possessor.” Bader v. Lawson, 320 Ark. 561, 564, 898 S.W.2d 40, 42 (1995). There are two types of invitees — public and business. A public invitee is invited to enter or remain on the property as a member of the public for a purpose for which the property is held open to the public. Lively v. Libbey Mem’l Physical Med. Cent., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business invitee is invited to enter or remain on the property for a purpose directly or indirectly connected with the business dealings of the possessor of the property. Id. at 45-46, 841 S.W.2d at 612. A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Our supreme court has declined to expand the “invitee” category beyond that of a public or business invitee to one whose presence is primarily social. See Bader, 320 Ark. at 564, 898 S.W.2d at 42. In Arkansas, a social visitor is regarded as a licensee of the property owner, despite the fact that both parties may mutually benefit. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). When determining whether a visitor qualifies as either an invitee or a licensee, it is important to look to the purpose of the visit and the property owner’s invitation. Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).
In Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994), Young sued his father-in-law after Young was injured while helping his father-in-law cut branches off a tree. The court affirmed the trial court’s holding that Young was a licensee where he, without an invitation, went onto the property of Paxton; had no business purpose for being on the property; expected no pay for his volunteer services; and was essentially paying a social visit that turned into a volunteer project. Id. at 660, 873 S.W.2d at 549.
The determination of whether a visitor is an invitee or licensee is important because it alters the duty of care of the property owner. The property owner’s duty to a licensee is to refrain from injuring the licensee through willful or wanton conduct and, if the licensee is in peril, to warn of hidden dangers if the licensee does not know or has no reason to know of such dangers. Lively, 311 Ark. at 47, 841 S.W.2d at 612. The duty owed to invitees is much broader and encompasses a property owner’s liability if he has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. See AutoZone v. Horton, 87 Ark. App. 349, 192 S.W.3d 291 (2004); see also Restatement (Second) of Torts, § 343A(1) (1965).
We are satisfied that Arkansas case law supports that Slavin was a licensee. Slavin was not a public invitee because the building was not open to the public. To determine if Slavin was a business invitee, we must determine if the purpose behind inviting Slavin to come onto the property was connected to the business dealings of the Local and benefitted it as to those business interests. The Slavins argue that by volunteering to help renovate the building, he was bestowing a business benefit on the Local. However, the problem with this contention is that a union is a unique type of “business.” It exists only as a group of members. The business purpose of a union is to advance the interest of its members. In helping refurbish the meeting hall, any benefit conferred on the Local was really conferred on its membership, including Slavin. Therefore, Slavin was really there for his own benefit, and the trial court correctly qualified him as a licensee.
We do not reach the Local’s cross appeal because we affirm on the direct appeal. Our decision on the cross-appeal would have no practical legal effect in this case, and therefore is a moot issue. Ark. Gas Consumers, Inc. v. Ark. Pub. Serv. Comm’n, 354 Ark. 37, 118 S.W.3d 109 (2003). We do not render advisory opinions or answer academic questions. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Generally, a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy. Wagnon v. Ark. Health Servs. Agency, 73 Ark. App. 269, 40 S.W.3d 849 (2001). There are some exceptions to the general rule, such as cases which are capable of repetition yet evade review and cases involving the consideration of public interest and prevention of future litigation. Ark. Gas Consumers, Inc., 354 Ark. at 37, 118 S.W.3d at 109. Neither exception applies in this case, so we decline to review the matter.
Affirmed on direct appeal, cross-appeal moot.
Pittman, C.J., and Baker, J., agree. | [
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Terry Crabtree, Judge.
This is a legal-malpractice case. On October 20, 2003, the Pulaski County Circuit Court granted summary judgment in favor of the appellee, Mitchell, Williams, Selig, Gates & Woodyard, finding that no material issue of fact existed and that the three-year statute of limitations barred the claims made by the appellant, Moore’s Investment Company, in its complaint. The sole issue on appeal is whether summary judgment was appropriate. We hold that it was and affirm the trial court’s ruling.
The facts surrounding the limitation issue are as follows. Appellant engaged appellee to effectuate a sale of its life insurance company, Old Southwest Life Insurance Company [Old Southwest], to Franklin America Life Insurance Company [Franklin America], Ultimately, on December 11, 1998, appellant entered into an acquisition agreement with Franklin America for the sale and transfer of Old Southwest. The terms of the entire sale transaction and closing procedures were set forth in the agreement. Jimmie Lee Moore Jaye, President of Old Southwest and President of Moore’s Investment Company, reviewed various drafts of the acquisition agreement and signed the final agreement on December 11, 1998. Under the terms of that agreement, appellant sold all of the issued and outstanding shares of common stock of Old Southwest effective March 1, 1999. The agreement was subject to the condition that it be approved by shareholders of Old Southwest and the Arkansas Insurance Commissioner.
Pursuant to the agreement, Franklin America first tendered eighty percent of the purchase price, $1,392,237.92, to appellant. However, in May 1999, Franklin America went into receivership and the balance of the purchase price, $329,213.00, which was due at that time, was not paid to appellant. As a result, appellant filed a complaint against appellee alleging that appellee committed malpractice by failing to advise it that under the terms of the agreement, twenty percent of the payment price was unsecured. Specifically, appellant alleged (1) legal malpractice, (2) breach of fiduciary duty, and (3) breach of contract. Later, appellee filed a motion for summary judgment asserting the affirmative defense of statute of limitations. After a hearing on the matter, the circuit court granted appellee’s motion.
On appeal, appellant argues that the trial court erred in granting summary judgment to appellee. We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). We now regard it simply as one of the tools in a trial court’s efficiency arsenal. Id. The moving party always bears the burden of sustaining a motion for summary judgment. Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996). All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Curley v. Old Reliable Casualty Co., 85 Ark. App. 395, 155 S.W.3d 711 (2004). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Mount Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show 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. Ark. R. Civ. P. 56 (2004); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).
On January 4, 2002, appellant filed its complaint alleging that appellee committed legal malpractice, conflict of interest or breach of fiduciary duty, and a breach of contract in regard to the sale of Old Southwest. On July 28, 2003, appellee filed a motion for summary judgment asserting the affirmative defense of the statute oflimitations. Along with its motion and brief in support, appellee attached (1) the pleadings on file including the complaint, (2) answers to interrogatories and requests for production from appellant, (3) excerpts from the deposition of Jimmie Lee Moore Jaye, and (4) a copy of the December 11, 1998, acquisition agreement. Appellee argued that the statute oflimitations began to run on December 11, 1998, at the time the acquisition agreement was executed.
As this is a legal-malpractice action, Ark. Code Ann. § 16-56-105 (Repl. 1996) is the applicable statute oflimitations. The statute requires a claim for malpractice to be filed within three years of “when the negligence occurs.” Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998). Since 1877, it has been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of conceal ment of the wrong, when the negligence occurs, not when it is discovered by the client. Goldsby v. Failley, 309 Ark. 380, 831 S.W.2d 142 (1992); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). While other jurisdictions use different approaches in determining when the cause of action accrues, we have stated that if such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature and not retrospectively by the courts. Goldsby, supra; Riggs, supra.
The triggering event for the statute of limitations in the present case is the date the acquisition agreement was signed by the parties on December 11, 1998. On that date, Franklin America and appellant finalized the entire agreement, set all procedures for closing, and agreed to all terms of the sale. Appellant, represented by Jimmie Lee Moore Jaye, read and signed the agreement, which included terms for a secured transaction in regard to eighty percent of the purchase price. All of the events following the December 11, 1998, execution served to effectuate the terms of the acquisition agreement. Any complaints or issues about the fairness of the transaction, the terms of the agreement, the purchase price, the steps for the closing process, and the manner of payment, including the unsecured balance, were established on December 11, 1998, and were known to appellant at that time.
At the trial court level, appellant alleged that appellee (1) failed to advise the “shareholders of Moore’s Investment Company that the sales agreement was, in part, unsecured on or before January 22, 1999, when the shareholders approved the settlement agreement”; and (2) failed “to advise Plaintiff Jimmie Lee Moore that the transaction was unsecured before Ms. Moore signed an Affidavit for the Insurance Commissioner stating that the transaction was fair in February . . . 1999.” These arguments do not change the fact that the unsecured status of the transaction is part of the acquisition agreement reviewed by appellant and signed on December 11, 1998.
Appellant also claimed that following the execution of the agreement appellee continued to be intermittently and repeatedly negligent in 1999 by failing again to advise appellant of the unsecured status of the balance. By making this claim on appeal, appellant asks this court to embrace the continuing-representation rule. Under that doctrine, the statute of limitations does not begin to run until the relationship between the professional and client has ended for a particular matter. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). That is simply not the law in Arkansas. Id. By sharp contrast, Arkansas courts apply the minority rule, the occurrence rule. Dunn, supra; Ragar, supra. As a result, we must look to the time when the negligence occurs. Id.
In summary, appellant filed its complaint on January 4, 2002, more than three years after the statute of limitations began to run. Therefore, we hold that the statute of limitations barred appellant’s claims against appellee for legal malpractice and breach of contract. As such, the trial court did not err in granting summary judgment on that basis.
However, we must distinguish appellant’s claim for breach of fiduciary duty or conflict of interest as we do not believe that it was barred by the statute of limitations. In appellant’s complaint it alleged, “COUNT II BREACH OF FIDUCIARY DUTY.” In paragraph thirty-one appellant asserted:
As a proximate result of their breach of fiduciary duty, the defendants failed and neglected to exercise their best judgment and loyalty to plaintiffs. As a result, defendants failed to inform plaintiffs of the risks which plaintiffs assumed in the transaction, and specifically the risks that plaintiff might not receive 20% of the purchase price because all of the assets would be transferred to FALIC with no security or escrow, while plaintiff would receive only 80% of the purchase price at closing. At a minimum, defendants should have advised plaintiffs of these issues before January 22,1999, when the shareholder of Old Southwest approved the sale, and also before the hearing before the Arkansas Insurance Commissioner in February, 1999. Had defendants fully informed plaintiffs of these risks, plaintiffs either would not have approved the transaction or would have insisted upon a provision securing the final 20% of the purchase price before proceeding with the transaction.
Based upon the language contained in appellant’s complaint, we believe that appellant’s claim for conflict of interest is separable from its general assertion for legal malpractice or breach of contract. The action that appellant complained of in regard to a conflict of interest did not occur prior to the signing of the acquisition agreement or while appellant and Franklin America negotiated the terms of the agreement. It was after the acquisition agreement was signed, in February 1999, that appellee represented both appellant and Franklin America in front of the Arkansas Insurance Commission. The acquisition agreement contained no language or reference to dual representation for the hearing before the Insurance Commission. As such, we believe that the three-year statute of limitations for the conflict-of-interest claim did not run until February 2002. As such, appellant’s complaint filed on January 4, 2002, was timely in relation to this particular claim.
As a result, we must address whether the trial court’s granting of summary 'judgment was proper in regard to the conflict-of- interest claim after viewing the proof in the light most favorable to appellant. See Curley, supra. On July 28, 2003, appellee filed a motion and brief in support for summary judgment. Appellee attached to the motion (1) the pleadings on file including the complaint, (2) answers to interrogatories and requests for production from appellant, (3) excerpts from the deposition of Jimmie Lee Moore Jaye, and (4) a copy of the December 11, 1998, acquisition agreement.
With the pleadings, excerpts of a deposition, and a copy of the agreement, we believe that appellee made aprima facie showing that it was entitled to summary judgment in its motion and brief regarding the conflict-of-interest claim. Next, we must examine whether appellant met proof with proof by showing any material issue of fact. See Mount Olive Water Ass’n, supra. The record reflects that appellant failed to file any affidavit or proof of any kind in response to appellee’s motion for summary judgment. Although appellant refers to an alleged ineffective waiver and to a letter that bears on this issue, neither the waiver nor the letter are included in the record, nor were they attached to the response to the summary judgment. As appellant failed entirely to meet proof with proof in response to appellee’s motion, we cannot say that the trial court erred in granting summary judgment to appellee in regard to the conflict-of-interest claim.
In conclusion, we note that the trial court found in its written order that all three of appellant’s claims were barred by the statute of limitations. We agree that the statute of limitations barred appellant’s claims for legal malpractice and breach of contract. However, we do not agree that the statute of limitations barred appellant’s claim for conflict of interest.
Also in its order, the trial court found that no genuine issue of material fact existed in this case. We believe that summary judgment was proper in regard to the claim for conflict of interest as appellant failed to meet proof with proof. We recognize that we will affirm a trial court when it reaches the right result for the wrong reason. Middleton v. Lockhart, 355 Ark. 434, 139 S.W.3d 500 (2003).
We affirm.
Vaught, J., agrees.
Hart, J., concurs. | [
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Karen R. Baker, Judge.
This is a boundary-line dispute. Appellant Roy Cummings appeals from the judgment of the Crawford County Circuit Court finding that he was estopped from proving either a boundary by agreement or by acquiescence. The trial court also quieted tide to the disputed parcel of land in appellee Norma Shults. Finding no error, we affirm.
The Shults property is located to the north of the Cummings property. The dispute is whether the parties agreed that a ditch or tree line, located on Shult’s property, would be the boundary between them, instead of the true boundary, located a few feet to the south. Charles Palmer once owned all of the land in dispute before selling it to Cummings in two transactions. The property now owned by Cummings was conveyed to him in June 1975. Palmer conveyed the land now owned by Shults to Cummings in March 1977. Both conveyances were made with reference to a 1974 survey performed by Clovis Satterfield for Palmer. Cummings conveyed one tract of the property to Shults in April 1988, subject to a mortgage. A survey was not made at the time of that conveyance. After the final payment was made, a dispute arose when Shults had the property surveyed in order to fence the property.
Shults filed a petition to quiet title, alleging that Cummings misrepresented the boundary line between the two parcels and that, after a survey was conducted, she discovered the true boundary. Cummings answered, admitting the parties’ ownership of their respective parcels of land but denying the other allegations of the petition. Cummings also filed a counterclaim, alleging that a boundary by acquiescence had been established.
At trial, Shults testified that, at the time of her purchase in 1988, she and Cummings walked the property, and Cummings pointed out a ditch or tree line as the boundary line. She admitted that the description in the 2001 survey contained 9.73 acres, while the description in her deed contained 8.67 acres. Shults testified that she did not recall any agreement that the boundary line would be located as Cummings pointed out or that it was discussed at closing. She stated that neither party believed that a survey was necessary at the time. Shults admitted that Cummings used the property up to the ditch line or tree line from April 1988 to 2001. She stated that she did not object to Cummings’s use of the disputed tract because Cummings said that it was his property. She also did not think that she owned the property until she paid off the mortgage.
Casey Whitehouse, Shults’s son, testified that he was not aware of the details of the transaction by which his mother bought the property. He stated that, when he moved onto the property in approximately 1991 or 1992, Cummings told him that the boundary line was in the area of the ditch line or tree line. Whitehouse testified that he was surprised that the survey showed the property extending further south than he expected. He stated that Cummings was not happy with the results of the survey and told him the survey was wrong. He discussed being present at a conversation between his mother and Cummings during which Cummings said that they could build the fence by the ditch line. He said that he told Cummings to get his own survey and that Cummings responded that the survey was probably correct. He also denied agreeing with Cummings’s proposal to build the fence along the ditch line. He admitted that the deed references the 1974 survey. He also admitted that he had never objected to Cummings’s use of the property up to the tree line because Cummings told him that the boundary was near that line.
Charles Palmer, the former owner of all of the property in dispute, testified that, when he owned what is now Shults’s tract, he discussed the boundary with Cummings and pointed out that the actual boundary was south of the ditch or tree line. He stated that he told Cummings that he could use the land up to the tree line for the time being but that it would go back to the actual boundary if he (Palmer) ever sold that tract. He said this conversation occurred prior to the time he sold the Shults tract to Cummings and that Cummings was aware that the tree line was not the boundary line. Palmer stated that he thought the tree line was within twenty feet of the actual boundary and that it was his intention to convey the property with the southern boundary twenty feet south of the tree line. He also stated that he believed that the descriptions in the deeds to Cummings were the same as the descriptions in the 1974 survey. Palmer also recalled that, when he discussed the boundary with Cummings, there were survey markers, but he did not recall the distance between the markers and the tree line.
Cummings testified that his understanding of the boundary line between Shults’s property and his was that the line ran about fifteen feet south of the ditch. He stated that he recognized the tree line as the boundary and that no one ever objected to his use of the property up to the tree line. Cummings stated that he maintained the property up to the tree line by cutting hay some fifteen to eighteen times between 1988 and 2001.
Cummings testified that he walked the property with Shults and explained that the boundary line was fifteen feet south of the ditch line but that he had always used the ditch as a boundary. He testified that Shults agreed to the use of the ditch as the boundary and that they further discussed the matter at closing. He also testified that he explained to Shults that Palmer conveyed the line fifteen feet south of the ditch.
Cummings stated that the 2001 survey was not accurate and that he never agreed that it appeared accurate. He also stated that the conversation Palmer described in his testimony was the same conversation during which he and Palmer agreed to use the tree line as the boundary. He denied needing another survey because he had a survey and knew where the true lines were. Cummings agreed that he sold Shults 8.65 acres but said that, if the 8.65 acres extended south of the tree line, it would not be Shults’s property. He denied having any intent to misrepresent the boundary to Shults. He also stated that he did not know if Whitehouse did not object to his using the property to the tree line because he (Cummings) told him that was where the boundary was.
Clovis Satterfield, the surveyor, stated that the deed from Cummings to Shults referenced his 1974 survey. He also stated that, in 2001, Whitehouse wanted him to mark the boundary line and make a plat. He admitted that, although the two surveys began from the same section corner, some of the distances and calls were different because the second survey started its description at a different point and this was an error on the part of the draftsman. He stated that, when a call is to the center of the road or the center of the bridge, a surveyor measures to that point, even if the distance is different from that called for in the deed. He also stated that the road may have been moved some small distance. He admitted that he did not find any of the corners from the 1974 survey and had to reset those corners and that they may not have been replaced in exactly the same spot. He did not think that the 1974 survey was inaccurate, nor did he think that the 2001 survey was inaccurate. He stated that the extra acreage contained in the 2001 survey can be explained by the extra length between the point of the beginning and the center of the county road.
The trial court issued a letter opinion finding that Shults had not acquiesced in the establishment of a boundary. The court also found that Cummings was trying to testify in a manner in derogation of his deed to Shults. The court then quieted title to Shults according to the 2001 survey. An order was entered in accordance with the letter opinion. This appeal followed.
Cummings raises three points on appeal: that the trial court erred in not finding that a boundary by acquiescence existed between the parties; that the assertion of the “clean hands” doctrine is not applicable and should not be considered; that the trial court erred in not finding a boundary by agreement. We find the second point dispositive and pretermit any discussion of the other points.
The location of a boundary line is a question of fact, and this court will affirm a trial court’s finding of the location of a boundary line unless the court’s finding is clearly erroneous. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).
In his second point, Cummings argues that the “clean hands” doctrine has no application in boundary disputes. The trial court did not mention the “clean hands” doctrine in his letter opinion. Instead, we believe that the trial court was actually applying estoppel by deed, which has long been recognized by Arkansas courts. Estoppel by deed bars one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted. Haynes v. Metcalf, 297 Ark. 40, 759 S.W.2d 542 (1988); Vaughn v. Dossett, 219 Ark. 505, 243 S.W.2d 565 (1951). A grantor is estopped to assert anything in derogation of his deed; thus, a specific recital in a deed, to the effect that the grantor has title to or that he is in possession of the land conveyed, will estop him from asserting the contrary as against the grantee. Turner v. Rust, 228 Ark. 528, 309 S.W.2d 731 (1958). It is well established that a grantor cannot dispute the existence of the property mentioned in his conveyance. Bass v. Willey, 216 Ark. 553, 226 S.W.2d 980 (1950). In Vaughn v. Dossett, supra, the supreme court applied the doctrine and estopped the grantee, who was a subsequent grantor, from changing the terms of a previous deed and mortgage when he knew he was attempting to act in derogation of the previous deed. Here, Cummings admitted that he knew Palmer conveyed the true boundary fifteen to twenty feet south of the tree line.
The evidence is undisputed that Cummings used the land up to the ditch/tree line without objection from 1988 until early 2001. However, the trial court refused to find a boundary by acquiescence because Cummings was attempting to claim a boundary different from that in his conveyance to Shults. Cummings conveyed the property to Shults with specific boundaries stated. He also told Shults and her son that the boundary line lies somewhere other than as described in the deed. Under these circumstances, it would be inequitable to allow Cummings to assert that, because Shults and her son did not object, a boundary by acquiescence was created. Likewise, the only “agreement” concerning the boundary line was allegedly made at the time Cummings was conveying the property to Shults. Therefore, Cummings is estopped and cannot assert that the boundary is other than as described in his deed. The cases cited by Cummings in support of his argument on this point, Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), and Jennings v. Burford, supra, do not discuss estoppel.
Because we affirm the trial court’s application of estoppel by deed, we need not discuss Cummings’s arguments concerning either a boundary by acquiescence or a boundary by agreement.
Affirmed.
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Larry D. Vaught, Judge.
Garland Trice, Ethel Green, Mattie Mason, and Margaret Dorsey (appellants) filed a petition to partition 171 acres in Moro, Arkansas. In response to the petition, Trenton Trice counterclaimed to be declared the sole owner of the property based on adverse possession and his exclusive possession of the property. After a hearing on the matter, the trial court concluded that Trenton held the land in question adversely to appellants and “that the title is in dispute. As a result, partition can not (sic) be granted.” On appeal, appellants argue that the trial court erred in its refusal to grant partition and in its finding that the adverse-possession counterclaim was timely and meritorious. We affirm the trial court’s denial of partition, albeit on other grounds, and the trial court’s conclusion that title is in dispute. However, because a finding of adverse possession is legally and logically inconsistent with a finding that title is in dispute, we reverse and dismiss the trial court’s declaration that Trenton proved exclusive ownership interest in the land via adverse possession.
The property in question was originally owned by the parties’ predecessor, R.H. Slaughter, who died in 1943 and was survived by several children: Captóla Miller, Robert Slaughter, Beatrice Dean, Ollie Ketchum, and Henry Slaughter. His daughter Essie Trice predeceased him, and her children were John, Derothea, appellant Ethel Green, appellant Mattie Mason, appellant Garland Trice, and appellant Margaret Dorsey. Captóla Miller died in 1946 and was survived only by her husband, Charley Miller. A partition suit was filed in Lee County Circuit Court, and the property was divided into five tracts in an order dated Septem ber 15, 1950. One tract was awarded to Henry Slaughter in fee simple; another tract was vested in fee simple in Robert Slaughter and Beatrice Dean as tenants in common; a third tract was vested in fee simple in Ollie Ketchum; a fourth tract was vested in fee simple in Trenton Trice, Derothea Trice, Ethel Green, Mattie Mason, John Trice, Garland Trice, and Margaret Dorsey as tenants in common; Charley Miller was awarded a life estate in the fifth tract, which was otherwise vested in fee simple in Ollie Ketchum, Henry Slaughter, Robert Slaughter, and Beatrice Dean, each of whom received an undivided one-fifth interest, and in Trenton Trice, Derothea Trice, Ethel Green, Mattie Mason, John Trice, Garland Trice, and Margaret Dorsey, who shared an undivided one-fifth interest (they each had an undivided one-thirty-fifth interest in the tract). According to appellants, Robert Slaughter died, leaving two sons whose names and whereabouts are unknown; Beatrice Dean died, survived by her son, Sonny, who died without a widow or children; Ollie Ketchum died, leaving no spouse or children, as did Henry Slaughter; and Essie’s son John, who died in 1976, was survived only by his widow, appellee Lenora Trice.
Following the entry of the 1950 partition order, Trenton took possession of all of the property. In support of the claim that Trenton adversely possessed the land in dispute, testimony was presented that he and his son Eoise managed, paid taxes on; farmed, leased, and collected and kept the rent on the property. There was also testimony that Trenton issued various deeds to the property. However, because no deeds were introduced to reflect these (or any other) conveyances, the trial court made “no finding that the conveyances actually occurred.” There was also testimony that Trenton and Eoise prohibited Garland Trice from coming onto the property and that in 2000 Ossie redeemed a portion of the property that had been forfeited to the state for failure to pay taxes.
After several continuances and appellants’ obtaining new counsel, this case was scheduled for trial on October 21, 2003. That morning, “Trenton Trice and Eoise Trice as heir” filed a counterclaim asserting adverse possession of the property, which is an affirmative defense to partition. Appellants objected to the filing of the counterclaim, arguing that it was untimely. In response, Trenton’s counsel stated that he would not object to a continuance. However, because this case had been pending for so long, appellants’ counsel responded that he did not want to delay it any further. The trial court questioned whether all of the necessary parties were included in the action, and appellants’ counsel assured the court that they were. The partition claim then went to trial with Trenton asserting the defense of adverse possession.
The trial court found merit in the adverse-possession claim. It concluded that Trenton acted as if he owned the property in fee simple — he farmed it, rented it, kept the rent proceeds, and took responsibility for the taxes on the land. The trial court also stated that “more importantly as a sign of sole ownership, Mr. Trice issued deeds, in fifteen (15) acre parcels . . .” In addition to these acts of ownership, the trial court noted that “Trenton Trice[,] and later his son, Eoise Trice[,] prohibited Garland Trice from coming onto the property or asserting any acts of ownership to contradict the Trenton Trice claim to the property.” As a result of these findings, the trial court concluded that title was in dispute and partition could not be granted because Trenton proved that he held the land in question adversely to appellant.
At the outset, we consider the primary question presented on appeal, whether the trial court erred in its refusal to grant the petition for partition. The requirements for a partition petition are set out in Ark. Code Ann. § 18-60-401 (b)(1) (Repl. 2003), which provides that everyone having an interest in the land and the amount of the interest shall be set forth in the petition. In their petition, appellants relied on the 1950 partition order to describe the relative property interests of R.H. Slaughter’s heirs. By appellees’ admission, at least ten heirs of R.H. Slaughter have died, and the names and relative interests of their successors have not been determined. The petition appears to assume that, when an heir died without children, his or her interest reverted to the other co-tenants. However, the 1950 order contained no language indicating that the fee simple grants gave rights of survivorship to the remaining co-tenants. Because appellants failed to identify the precise interests held in the property they are seeking to divide, a grant of partition would not only be improper, it would be impossible. Thus, we conclude that the partition petition was properly denied, and we affirm the trial court’s ruling, albeit for a different reason. Moore v. Wallace, 90 Ark. App. 298, 205 S.W.3d 824 (2005).
Appellants also contend that the trial court erred in failing to strike the adverse possession counterclaim as untimely because it was filed the morning of trial. However, under Ark. R. Civ. P. 15(a), with certain exceptions not applicable here, a party may amend his pleadings at any time without leave of the court, unless, upon motion of an opposing party, the court determines that prejudice would result or disposition of the cause would be unduly delayed. The Reporter’s note 1 to this rule states: “Generally speaking, it is the intent of this rule that amendments to pleadings should be permitted without leave of the court in all instances unless it can be demonstrated that prejudice or delay would result.” In those instances, the court may strike the amended pleading or grant a continuance. Odaware v. Robertson Aerial-AG, Inc., 13 Ark. App. 285, 683 S.W.2d 624 (1985). The trial court has broad discretion in allowing or denying amendment of the pleadings. Stoltz v. Friday, 325 Ark. 399, 926 S.W.2d 438 (1996).
Here, appellants’ counsel did not make a showing of prejudice, refused to request a continuance (despite the fact that appellees’ attorney stated that he would not object to one), and indicated that he wished to proceed with the trial. Given the trial court’s broad discretion in these matters, and the liberal nature of the rules governing amended pleadings, we cannot say that its decision constituted an abuse of that discretion. Accordingly, we affirm on this issue.
Finally, appellants argue that the trial court erred in finding that Trenton adversely possessed the property. Although we have decided that partition was correctly denied, we still must address the adverse-possession claim because it was presented both as a defense to partition and as an independent counterclaim. In its letter opinion, the trial court discussed Trenton’s acts ofpossession and stated that it could not grant partition because Trenton had proven that the land was held adversely to appellants and that the title was in dispute. These conclusions cannot co-exist because they are mutually exclusive — either Trenton established through adverse possession sole ownership of the property and title should have been quieted in his favor or title was in dispute.
It is well settled that land cannot be partitioned that is held adversely or to which the title is in dispute. Kinkead v. Spillers, 336 Ark. 60, 983 S.W.2d 425 (1999). Whether possession is adverse to the true owner is a question of fact. White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001). We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. Dillard v. Pickier, 68 Ark. App. 256, 6 S.W.3d 128 (1999). A finding is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.
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 his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. White River Levee Dist. v. Reidhar, 76 Ark. App. at 228, 61 S.W.3d at 237. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. A claimant may “tack on” the adverse-possession time of an immediate predecessor in title. Id.
Additional factors, however, come into play when one co-tenant asserts adverse possession against the others, because the possession of one tenant-in-common is the possession of all. Hopper v. Daniel, 72 Ark. App. 344, 38 S.W.3d 370 (2001). Because possession by a co-tenant is not ordinarily adverse to other co-tenants, each having an equal right to possession, a co-tenant must give actual notice to other co-tenants that his possession is adverse to their interests or commit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. Id. The statutory period of time for an adverse-possession claim does not begin to run until such knowledge has been brought home to the other co-tenants. Id. There is no hard-and-fast rule by which the sufficiency of an adverse claim may be determined; however, we consider factors such as the relationship of the parties, their reasonable access to the property, kinship, and innumerable other factors to determine if non-possessory co-tenants have been given sufficient warning that the status of a co-tenant in possession has shifted from mutuality to hostility. Id. When there is a family relation between co-tenants, stronger evidence of adverse possession is required. Id.
There was testimony that Trenton claimed ownership of all of the land, farmed the property, made improvements on it, leased it, paid taxes on it, and exercised exclusive control over it since the 1950s. However, because a tenant in common is presumed to hold the property in recognition of the rights of his co-tenants, all of these acts were consistent with the types of action a co-tenant — especially a family member — can take without giving notice of an adverse claim to his co-tenants. We acknowledge that testimony was presented indicating that Trenton issued several deeds to the property. However, no deeds were introduced reflecting these conveyances. Based on this lack of proof, the trial court refused to find “that the conveyances actually occurred.” Despite this finding, the trial court went on to conclude that the fact that Trenton made these conveyances was an important sign of his sole ownership of the property. In our analysis, we resolve this contradiction by giving no weight to the alleged conveyances based on the trial court’s refusal to recognize that Trenton actually conveyed the property.
Therefore, we are left with the testimony that Garland was forced to leave the property on a couple of occasions as the only persuasive proof of an adverse action against a co-tenant. However, Garland was only one of the potentially large number of co-tenants, and, in the absence of evidence showing acts of hostility toward the other co-tenants, Garland’s removal from the property cannot be characterized as anything other than an adverse act against a singular co-tenant. Further, as discussed previously, the various interests in the property have not been sufficiently identified. Thus, it would be very difficult, if not impossible, to prove actual notice to or hostile acts against unidentified co-tenants. We are convinced that the evidence of Trenton’s adverse possession claim falls short of the heavy burden that a family-member co-tenant must satisfy to establish adverse possession against his co-tenants. Therefore, we hold that the trial court’s finding of adverse possession is clearly erroneous, and we reverse and dismiss on this issue.
Affirmed in part; reversed and dismissed in part.
Bird and Griffen, JJ., agree.
Trenton Trice died during the course of this litigation, and the defense to the partition petition was presented by his son, Eoies Trice, as heir of Trenton Trice. Although one of Trenton’s surviving children, Ossie, was named as a party, the complaint was never amended to add Trenton’s other surviving children — Eoies and Irma Jean — to the action. In addition to Trenton and Ossie Trice, LenoraTrice was also named as a defendant in this action. For sake of clarity, when referencing the appellees in this appeal, the singular name of Trenton Trice will be used.
As for appellants’ argument that the trial court erred in denying partition partially on the ground that two of Trenton’s heirs were not named as defendants, it is well setded that all persons whose rights might be affected by the determination of a controversy involving land must be made parties to an action. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000). | [
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Wendell L. Griffen, Judge.
Jerry Walker appeals from his convictions for first-degree murder and second-degree unlawful discharge of a firearm from a vehicle. He argues that the trial court erroneously denied his motion for a mistrial after his then wife testified to a confidential communication, violating his interspousal privilege. Appellant does not challenge the sufficiency of the evidence. We hold that, while the communication between appellant and his then wife was privileged, the trial court did not err in denying appellant’s motion for mistrial. Accordingly, we affirm.
Appellant was charged in the shooting death of Darren Bouie. Two witnesses testified that, on February 2, 2002, at the intersection of Roosevelt Road and Martin Luther King Drive in Little Rock, a blue car pulled up next to a silver car. Appellant, who was driving the blue car, yelled at the men in the silver car and then fired four to five shots. Dr. Stephen Erickson, a forensic pathologist, testified at trial that Bouie was shot twice in the back and once in the mouth.
Eubangi Polk, Bouie’s friend, was the passenger in the silver car. He and Bouie were in the turning lane on Martin Luther King Drive when Polk heard gunshots. He looked to his right and saw appellant firing at them. Polk and Bouie tried to get out of their car. When they exited the vehicle, Polk saw the blue car turn right on Roosevelt Road. Bouie was shot several times. Polk testified that Bouie did not have a chance to get the gun that was in the passenger-door console and that he never saw that gun.
Laury Rhinehart, who was married to appellant at the time of the shooting, testified that she and appellant were driving when appellant saw Bouie. Appellant pulled alongside Bouie’s car, opened his door, and fired his gun. Rhinehart testified that appellant then entered the car and reloaded his gun. The following colloquy occurred at trial:
The State: And what did you do to Jerry while he was trying to reload the gun?
Rhinehart: I asked him what was he doing. He said he was getting ready to kill the other guy, too.
Counsel for Appellant: Objection. Ask to approach.
Rhinehart: And I pulled him back —
The Court: Okay. Hold on just a second, please, Ms. Rhinehart.
[at bench conference]
Counsel: Your Honor, reluctantly, I ask for a mistrial because it’s clear that she was not supposed to testify as to any communication they had. There was one issue that may have been an exception, but that certainly was not it.
And that is so prejudicial, Judge, he cannot get a fair trial when you’re talking about he said he was going to reload and kill the other person. I’d ask for a mistrial.
The State: Judge, first of all, that question was, what did he say? That wasn’t what I asked. But, in any event, the answer or what was actually stated is not a confidential communication made in the course and furtherance —
The Court: Holdon,Mr.Hout. Just hold on. Now—
The State: In order for it to be a privileged communication, it has to be a confidential communication made in the course and furtherance of the marriage in confidence. He is there at the street, the windows are down, gunshots are fired, there are people all around. That’s not something that’s in — it’s not a confidential communication.
Even if it were, this certainly can be cured by an admonishment to the jury. This is not something that
The Court: What, my notes indicate that you specifically asked her what he said at the time. Do you recall that? Did you not ask her what —
The State: No, sir. I thought I asked, what did he do at the time? What did you do while he was shooting? We can check the record.
Counsel: The point is,Judge, quite frankly,Judge, I think Mr. Hout may be right, but I’m not positive about that.
The Court: Okay.
Counsel: This is a problem, Judge. This is his witness. You admonished him to advise her. I’m assuming he did that. It’s still his witness. He’s stuck with her testimony. What could be more prejudicial than have my client tell her he was going to kill the other one? What could be more prejudicial than that?
It’s unfortunate, Judge, but the cow is out of the barn, the milk is contaminated, and we can never get a fair trial. There’s nothing you can say to take that back, Judge. I ask for a mistrial.
The State: And, actually, I think that the ruling was that there couldn’t be — and, I mean, I did tell her not to mention anything other than what —
The Cqurt: I think it was obvious from a response to a previous question that she did not mention a communication at one point in time.
The State: In any event, the ruling was that they couldn’t mention any privileged information. And I don’t — even though I’ll move on and don’t want to address that, that’s not a privileged communication.
The Court: Okay. Well, here’s what we’re going to do: Mr. Davis has moved for a mistrial. I’m going to deny the motion for mistrial.
Now, with that denied, do you want me to consider any type of admonishment to the jury, Mr. Davis?
Counsel: Well, I’m thinking out loud, Judge. I’m kind of stuck between a rock and a hard place. I feel like if I offer some words to that effect, then I’m waiving — because I just simply don’t think that —Judge, again, I beg the Court to consider what could be more prejudicial than saying, “He told me he was going to kill the other guy”?
The Court: Well, I mean, I’m not so certain that I don’t agree with Mr. Hout, that these type of statements for any number of reasons might not be privileged.
But let’s just assume, for purposes of our bench conference, that it is. I’m still not convinced that it would be something that would even warrant a mistrial at that point in time.
We don’t need to go any further down this road.
The State: No, sir.
The Court: So you would like to just stand on the motion for mistrial?
Counsel: Quoting one of my former employers, I’m going to stand mute on it, other than to say that I think a mistrial is warranted.
The Court: Okay. Well, you’ve moved for a mistrial, and you’ve specifically stated the reason for that.
Counsel: If the Court determines on its own to make some comment, that’s up to the Court.
The Court: Well, I’m not going to determine that on my own. I’m not going to make any further comment then. We’re getting ready to move on. And this is only the third witness out of 16.
And let me just say this: We don’t want to hear anything in argument at the close of this case about that particular statement.
Appellant claimed that the shooting was in self-defense. He testified that on January 27, 2002, he was at Bouie’s sister’s house when Bouie’s brother attempted to rob him. Appellant started running when Bouie and two other men appeared. Appellant stated that he turned around and tackled Bouie’s brother. When he fell, the other men started beating him. On February 2, 2002, appellant and his wife left their hotel room to have their car repaired. He was driving on Martin Luther King Drive when he stopped at a red light. Appellant stated that he looked to his left and saw Bouie, who “had a sneaky grin and pulled his pistol up and started rolling down his window.” Appellant testified, “I opened my door, jumped out of the car, closed my eyes and started shooting in the car at him.”
The jury found appellant guilty of first-degree murder and second-degree unlawful discharge of a firearm. Appellant was sentenced as a habitual offender to a total of eighty years in the Arkansas Department of Correction. This appeal followed.
For his sole point on appeal, appellant argues that his conviction should be reversed because testimony was admitted in violation of the interspousal privilege. While appellant argues that reversal should be granted on the evidentiary issue, he requested a mistrial at trial. Accordingly, our review is of the mistrial motion. A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected by admonishing the jury or other curative relief. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004); Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003). An admonition to the jury usually cures a prejudicial statement unless the statement is so patently inflammatory that justice cannot be served by continuing the trial. Hudson v. State, supra. The trial court has wide discretion in granting or denying a motion for mistrial, and we will not reverse the trial court’s decision absent an abuse of that discretion or manifest prejudice to appellant. Id. Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Jimenez v. State, supra.
Rule 504 of the Arkansas Rules of Evidence (2004) states, in pertinent part:
(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(b) General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.
A person can only claim interspousal privilege if the communication was not intended to be disclosed to any other person. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). The burden of proving that a privilege applies is upon the party asserting it. Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992); Kinkead v. Union Nat’l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995).
Appellant’s communication to Rhinehart was privileged. Rhinehart testified that appellant told her that he was going to “kill the other guy” while appellant was reloading his gun in the car. There is no indication that a third party heard the communication. See Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981) (holding no privilege existed when the communication was overheard by a third party). Because of the incriminating nature of the statement, we can infer that appellant did not intend for Rhinehart to disclose his remark. See Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991) (holding no privilege when appellant’s statement to wife was intended to be disclosed to appellant’s sister). Appellant’s communication was a private communication to his wife not intended for disclosure. Therefore, it was a privileged interspousal communication.
However, we hold that the trial court did not err in denying appellant’s motion for mistrial. While the statement should have been excluded, any error in allowing the statement into evidence was harmless. Where evidence of guilt is overwhelming and the error is slight, we can declare the error harmless and affirm. Proctor v. State, 349 Ark. 648, 79 S.W.2d 370 (2002). Here, appellant presented little evidence that the shooting was in self-defense. One who asserts the defense of justification for a homicide must show not only that the person killed was using deadly force, but that he responded with only such force as was necessary and that he could not have avoided the killing. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Ghoston v. State, 84 Ark. App. 387, 141 S.W.3d 907 (2004). Further, Arkansas Code Annotated section 5-2-607(a) (Repl. 1997) provides that a person may not use deadly force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating, unless that person is in his dwelling and was not the original aggressor. See also Ghoston v. State, supra. Bouie was shot twice in the back and once in the mouth. Appellant offered little evidence, outside of his own testimony that Bouie allegedly pulled out a gun, that Bouie did anything threatening or posed any immediate harm. He offered no evidence that he attempted to retreat from any alleged danger. Finally, the trial court instructed the State not to mention the communication again, and the State complied. Any prejudice in admitting the privileged communication was slight in comparison to the overwhelming evidence that appellant intended to kill Bouie. Accordingly, the trial court correctly denied appellant’s motion for mistrial.
Affirmed.
Bird and Vaught, JJ., agree.
This was the second trial after the first ended in a mistrial. Polk could not be found; therefore, his testimony from the first trial was read into evidence. | [
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John B. Robbins, Judge.
Appellant Natasea Stephens and J appellee Quincy DeSha Miller are the parents of Makiya Stephens, who was bom on December 23, 2002. Mr. Miller filed a petition to establish paternity, and after a hearing held August 18, 2003, the Dallas County Circuit Court entered an order establishing paternity on September 10, 2003. The order awarded custody of the child to Ms. Stephens, and gave Mr. Miller visitation on alternating weekends from noon on Saturday until 4:00 p.m. on Sunday. Beginning November 1, 2003, Mr. Miller was granted standard visitation. The September 10,2003, order also ordered Mr. Miller to pay weekly child support of $54.00.
On March 23, 2004, Ms. Stephens filed a motion to transfer the case to Pulaski County Circuit Court. In her motion, she asserted that when the paternity order was entered, both parties lived in Fordyce, Dallas County, but that both parties had since relocated to Pulaski County. Ms. Stephens asked the trial court to set a hearing on the matter in the event her motion to transfer was contested.
The motion to transfer was served on Mr. Miller at a Little Rock apartment at 12201 Mara Lynn Road at 10:30 a.m. on Saturday, March 27, 2004. Mr. Miller filed a timely motion to deny the transfer on April 13, 2004. In his motion, Mr. Miller asserted that 12201 Mara Lynn Road is his sister’s address, and that he continues to live at 406 Garlington Road in Fordyce. Despite Mr. Miller’s objection, and without the benefit of a hearing, the trial court entered an order transferring the case to Pulaski County Circuit Court on April 22, 2004.
On June 7, 2004, Mr. Miller filed a motion to vacate the order of transfer in the Dallas County Circuit Court. The motion was filed pursuant to Ark. R. Civ. P. 60(a), which provides:
Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
In his motion, Mr. Miller asserted that he filed a timely objection to Ms. Stephens’ transfer motion, and that he continues to be a resident of Dallas County.
The trial court set a hearing on Mr. Miller’s motion to vacate for June 21, 2004. After the hearing on July 14, 2004, the trial court entered an order granting Mr. Miller’s motion. Ms. Stephens has timely appealed from the trial court’s July 14, 2004, order, and now argues that the trial court erred in vacating its earlier order and in failing to transfer the case to Pulaski County.
Mr. Miller’s sister, Tenesha Miller, was the first witness to testify at the hearing. She stated that she has resided alone in an apartment at 12201 Mara Lynn Road in Little Rock since November 2003. Ms. Miller maintained that her brother does not live with her, but that he occasionally visits on weekends. She stated that he lives in Fordyce and was visiting on the morning he was served with the motion to transfer. Ms. Miller testified that she paid her rent with no assistance from Mr. Miller. Her lease agreement was admitted into evidence, and Ms. Miller is the only resident/lessee named on the lease.
Ms. Stephens testified on her own behalf, and she indicated that on a couple of occasions in February or March of 2004 Mr. Miller asked her to pick up Makiya from visitation at his apartment in Little Rock, which was the same apartment where his sister lives. She stated that after being served with the motion to transfer on March 27, 2004, Mr. Miller referred to the apartment as only his sister’s apartment, and that the visitation exchange always took place at his parent’s house in Fordyce.
Ms. Stephens testified that she moved with Makiya to Little Rock in June 2003 to live with her mother and stepfather, and that she currently works and attends college in Little Rock. Ms. Stephens thought that the transfer to Pulaski County Circuit Court was proper because she plans to continue living in Little Rock, where Makiya will eventually go to school.
Ms. Stephens stated that Mr. Miller was behind on his child support, which was substantiated by a Dallas County Circuit Court order dated March 18, 2004. Ms. Stephens also indicated that she wants to limit Mr. Miller’s visitation rights. On cross-examination, Ms. Stephens acknowledged that Mr. Miller is employed by Millcreek of Arkansas, which is located in Fordyce.
Ms. Stephens’ cousin and mother also testified on her behalf. Both of these witnesses corroborated her testimony that Mr. Miller referred to the Little Rock apartment as his apartment, and that visitation exchanges occurred there.
Mr. Miller testified that his working hours at Millcreek are from 11:00 p.m. to 7:00 a.m. from Wednesday to Saturday. He stated that he lives with his parents in Fordyce but has visited his sister in Little Rock on weekends. He denied paying any expenses for the apartment or referring to it as his. Mr. Miller acknowledged that two visitation exchanges occurred at the apartment, but stated he was just a visitor and it was for Ms. Stephens’ convenience. Mr. Miller also acknowledged receiving a letter from Ms. Stephens’ counsel at that address, but stated he received it almost two weeks after it arrived. Mr. Miller testified that the address on his driver’s license is 406 Garlington Road in Fordyce, that he has never changed his residence from there, and that he is registered to vote in Fordyce.
At the conclusion of the hearing, Mr. Miller’s counsel moved to dismiss the motion to transfer. The trial court then announced that “your motion is well founded” and that there was no compelling reason to grant a motion to transfer. The trial court then stated, “I’m going to grant your motion, I guess, for directed verdict is what you’re asking for?,” and Mr. Miller’s counsel replied, “yes, sir.” In conclusion, the trial court stated:
We previously talked about the Motion to Set Aside the Order which I signed which did actually transfer this case. I’ll ask you to prepare a precedent, [counsel for Mr. Miller], which does both, set aside the previous order and denies the Motion to Transfer.
The order being appealed from recites:
1. Plaintiffs Motion To Vacate Order To Transfer should be, and hereby is, granted.
2. Plaintiffs oral Motion for directed verdict on the issue of transfer should be, and hereby is granted.
3. The Pulaski County Circuit Clerk should be, and hereby is, ordered and directed to return to the Dallas County Circuit Clerk’s Office the file of this matter which was recently forwarded to said Pulaski County Circuit Clerk.
For reversal of the trial court’s order, Ms. Stephens submits that the trial court failed to make the proper findings to support it and that a directed verdict was improper. Arkansas Code Annotated section 9-10—102(f)(1) (Supp. 2003) provides:
(f)(1)(A) The court where the final decree of paternity is rendered shall retain jurisdiction of all matters following the entry of the decree.
(B)(i) If more than six (6) months subsequent to the final adjudication, however, each of the parties to the action has established a residence in a county of another judicial district within the state, one (1) or both of the parties may petition the court which entered the final adjudication to request that the case be transferred to another county.
(ii) The case shall not be transferred absent a showing that the best interest of the parties justifies the transfer.
(iii) If a justification for transfer of the case has been made, there shall be an initial presumption for transfer of the case to the county of residence of the physical custodian of the child.
Ms. Stephens argues that a transfer was justified under the above provisions because she established that both parties relocated to Pulaski County, and that the best interest of the parties and child was to transfer the case to the county where the physical custodian resides. At any rate, she contends that entry of a directed verdict was erroneous, citing Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003), where the supreme court stated that in determining whether a directed verdict should be granted, the evidence is reviewed in the light most favorable to the nonmoving party and given its highest probative value, taking into account all reasonable inferences deducible from it. Ms. Stephens argues that, considering the evidence in a light favorable to her and the reasonable inferences to be drawn therefrom, she at least presented questions for the trier of fact and that the case should not have been resolved by a directed verdict.
Pursuant to Ark. Code Ann. § 9-10-115(a) (Supp. 2003), the trial court may vacate an order issued under the paternity section of the Code as justice may require. In this case the trial court committed no error in vacating the prior transfer order because that order was issued without an evidentiary hearing, after Mr. Miller filed a timely objection asserting that he remained a resident of Dallas County. Furthermore, there was evidence presented by Mr. Miller at the hearing that would have authorized the trial court to deny Ms. Stephens’ motion to transfer on its merits, given that Mr. Miller offered ample evidence that he never lived in Little Rock and thus never established a residence outside of Dallas County as contemplated by Ark. Code Ann. § 9-10-102(f) (1)(B)(i) (Supp. 2003). However, we agree with Ms. Stephens that this issue was erroneously decided by directing a verdict rather than weighing the competing evidence.
In Bio-Tech Pharmacol, Inc. v. International Business Connections, LLC, 86 Ark. App. 220, 184 S.W.3d 447 (2004), we stated:
A party in a nonjury trial may challenge the sufficiency of the evidence by moving to dismiss the opposing party’s claim for relief. See Ark. R. Civ. P. 50(a) (2004). When a party moves for a “directed verdict” or dismissal in a bench trial, it is the duty of the trial court to consider whether the plaintiffs evidence, given its strongest probative force, presents a prima facie case. See Henley’s Wholesale Meats v. Walt Bennett Ford, 4 Ark. App. 362, 631 S.W.2d 316 (1982). It is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Id. On appeal, in determining whether a directed verdict should have been granted, we review the evidence in the fight most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001) (citing Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992)).
The evidence viewed in the light most favorable to Ms. Stephens was that on two recent occasions before she moved to transfer, Mr. Miller told her to pick up their child at his apartment in Little Rock, and that she did so. Mr. Miller was at the apartment to personally receive service of the transfer motion, and he also received mail at that address. This evidence presented a prima facie case that at the time Ms. Stephens filed her motion to transfer, Mr. Miller resided in Pulaski County. Given the undisputed fact that Ms. Stephens and the child also resided in Pulaski County, there was evidence from which the trier of fact could have concluded that each party had established residence there and it was in the best interest of the parties that the case be transferred. Therefore, we agree with Ms. Stephens that the trial court erred in directing a verdict in favor of Mr. Miller.
We affirm the trial court’s decision to vacate its prior transfer order. However, we reverse and remand because the trial court erroneously directed a verdict against Ms. Stephens upon consideration of the merits of her transfer motion.
Affirmed in part; reversed and remanded in part.
Glover and Neal, JJ., agree.
Arkansas Code Annotated section 9-10-102(f)(4) (Supp. 2003) provides that any objection to a motion to transfer in a paternity case must be filed within twenty days from receipt of the motion. | [
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Josephine Linker Hart, Judge.
In a previous opinion,
Windsong Enterprises, Inc. v. Upton, CA04-571 (Ark. App. Feb. 9, 2005), we affirmed the Cleburne County Circuit Court’s award of summary judgment to appellee Richard Upton in appellant Windsong’s lawsuit for tortious interference with a business expectancy on the ground that, as a matter of law, appellant did not have a valid business expectancy. Appellant has filed a petition for rehearing, arguing that our original decision was erroneous. After careful reconsideration, we find appellant’s argument to be persuasive. Accordingly, we grant the petition for rehearing and issue this substituted opinion reversing the circuit court’s grant of summary judgment and remanding for trial.
Appellant, a land developer, owns real property, “South-winds,” in the Eden Isle subdivision in Cleburne County. Appellant’s adjoining landowner and predecessor in title, appellee Upton, resides in that subdivision and owns a significant portion of the real estate in the Eden Isle development. He also has an interest in several businesses there, including Red Apple Enterprises Limited Partnership. Soon after appellant purchased Southwinds, it learned that appellee had inadvertently conveyed to appellant some of the cart paths on the Red Apple golf course. Although Upton attempted to reacquire that land, the parties could not agree upon a price. According to appellant, Upton then began to interfere with appellant’s plans to develop Southwinds, which was zoned for condominiums when appellant purchased the property. After the cart-path dispute, appellee allegedly banded together with friends and relatives who also owned property in the Eden Isle subdivision, and, using a provision in the original bill of assurance providing for its amendment by a majority of the landowners, rezoned appellant’s property to permit only single-family residences.
Eden Isle Corporation and its president, Donald Tollefson, filed this action for declaratory relief against appellant as to whether appellant could subdivide the Southwinds property without the approval of Eden Isle Corporation. Appellant filed a counterclaim, which it amended to add Red Apple Enterprises and Richard Upton as counterdefendants. While this lawsuit was pending, Eden Isle Corporation filed another action against appellant and Red Apple Enterprises in Cleburne County concerning the sewer service in Eden Isle subdivision (the “sewer case”). Appellant filed a counterclaim against Eden Isle Corporation and a cross-claim against Red Apple Enterprises in that case, alleging intentional interference with a business expectancy. Upton was not named as a party in the sewer case. After amending its counterclaim in this action several times, appellant filed a motion for voluntary dismissal of its claims for intentional interference with its business expectancies. It also filed a similar motion in the sewer case. On June 15, 2001, the courts entered dismissal orders in both cases.
On May 21, 2002, appellant filed a seventh amended counterclaim reasserting its claims for intentional interference with its business expectancies against Eden Isle Corporation and Upton. Appellant took a nonsuit on its claim against Eden Isle Corporation. In that' order, the circuit court stated: “It is recognized that Windsong’s remaining causes of action in this case are directed solely against Richard Upton.” Appellant filed an eighth amended counterclaim against Upton. After Upton moved to dismiss the seventh and eighth amended counterclaims, the circuit court entered an order stating that it would consider the motion to dismiss as a motion for a more definite statement and gave appellant a period of time within which to file an amended counterclaim against Upton.
Appellant filed its “Restated Complaint” against Upton on January 10, 2003, stating that Upton had influenced Eden Isle Corporation to impose certain conditions to be met by appellant for the development of Southwinds in order to resolve appellant’s dispute with Eden Isle Corporation and that those conditions were, in fact, Upton’s “personal expectations.” Appellant stated:
10. Mr. Upton knew ofWindsong’s development plans which were consistent with the existing development in the area and with the existing provisions of the Bill of Assurance. Armed with this knowledge, Mr. Upton, whether through his personal initiation or through the exercise of his necessary approval, repeatedly caused the Bill of Assurance and Dedication to be amended, revised and, ultimately, rewritten, all to Windsong’s detriment. He manipulated Eden Isle Corporation to act adversely to Windsong and otherwise tortiously interfered with Windsong’s contractual rights and business expectancies. Since Windsong’s purchase, Mr. Upton supported a limitation on Windsong’s rights to services, thwarted its ability to subdivide the property, undertook offensive activities on lands adjacent to Windsong’s property and imposed new restrictions on the use for Windsong’s property.
11. Mr. Upton’s actions were specifically intended to restrict the usage ofWindsong’s property and to interfere with its contractual relationships and business expectancies....
Upton moved for summary judgment, arguing that appellant’s restated complaint was barred by the doctrine of res judicata because appellant had twice nonsuited essentially identical claims for tortious interference with a business expectancy in this case and in the sewer case, and that, according to Ark. R. Civ. P. 41(b)(2), when the restated complaint was filed, there had already been a decision on the merits of these claims. Upton argued that, although he was not a named party in the sewer case, he was a privy of Red Apple Enterprises for purposes of res judicata. Upton also asserted that, because the plat and bill of assurance could be lawfully amended at any time and appellant’s boat-dock application was subject to approval by the United States Army Corps of Engineers, any expectancy appellant had was subject to a contingency. Upton further argued that the restated complaint contained no factual allegation sufficient to justify the piercing of the corporate veil of the business entities in which he serves as an officer, director, stockholder, or manager. Additionally, Upton argued that collateral estoppel applied to the court’s final order in the sewer case, wherein the court found that appellant had acknowledged that it did not have a comprehensive development plan for Southwinds and that it intended to develop the property on a lot-by-lot basis. Upton further argued that the tort of intentional interference with the use and enjoyment of property does not exist under Arkansas law. In his supporting affidavit, Upton stated that his understanding was that the bill of assurance could be amended at any time for any nondiscriminatory purpose. He also said that he had not attempted to hinder Southwinds’s sewer access or service and that he had not interfered with the creation and sale of lots in South-winds.
In response to the motion for summary judgment, appellant argued that the doctrine of res judicata does not apply to interlocutory orders. It also asserted that, because the sewer case involved Red Apple Enterprises and not Upton, res judicata did not apply. It further argued that whether a corporation is distinct from its shareholders was not relevant because its claims were against Upton, individually, and not against a business entity. Additionally, appellant stated that it had not alleged tortious interference with the use of its property. In support of its response, Windsong filed the affidavits of its owners, Ronald McKenzie and Mark McKenzie. On June 11, 2003, the circuit court awarded summary judgment to Upton without stating the basis for its decision. This is the second appeal from that decision. On October 29, 2003, we dismissed the first appeal for lack of a final order. After our dismissal of the first appeal, the circuit court granted the motion for voluntary nonsuit of Red Apple Enterprises on its cross-claim against appellant. This appeal followed.
The standard of review for this appeal from the entry of summary judgment is well settled. Summary judgment is to 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. State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). In considering whether to grant summary judgment, we consider pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any. Curley v. Old Reliable Cas. Co., 85 Ark. App. 395, 155 S.W.3d 711 (2004). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Id.
In its brief, appellant addresses all of the grounds on which Upton based his motion for summary judgment and argues that none of them are sustainable. Because we are reversing on the business expectancy issue, we need not address the other points on appeal.
To establish a claim of tortious interference, a plaintiff must prove: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) resultant damage to the party whose relationship or expectancy has been disrupted. Vowell v. Fairfield Bay Cmty. Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001). It is also necessary that the defendant’s conduct be improper. Id. For guidance as to what is improper, the Restatement (Second) of Torts § 767 (1979) states that the court should consider (1) the nature of the actor’s conduct; (2) the actor’s motive; (3) the interests of the other with which the actor’s conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (6) the proximity or remoteness of the actor’s conduct to the interference; and (7) the relations between the parties. Vowell, supra; Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).
Here, appellant purchased its property when it was zoned for multifamily use with the express intention of developing it for that purpose. It is true that the subdivision’s bill of assurance could be amended at any time by a majority of the landowners. Nevertheless, we cannot say that purchasing property that was zoned for multifamily use with the intention of building multifamily dwellings was not, as a matter of law, a valid business expectancy in this situation. In our view, appellant sufficiently demonstrated the existence of genuine issues of material fact on all of the elements of a claim for tortious interference with a business expectancy, and those issues should be tried. We therefore hold that the circuit court erred in granting summary judgment to Upton and reverse and remand for trial.
Reversed and remanded.
Bird, Griffen, Vaught, Crabtree, and Roaf, JJ., agree.
Gladwin, Robbins, and Neal, JJ., dissent. | [
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Wendell L. Griffen, Judge.
Georgia-Pacific has appealed the decision of the Workers’ Compensation Commission finding that the appellee, Johnny Carter, suffered an injury causally related to the work, and that he was entitled to temporary total disability benefits and payment of reasonable medical expenses. Appellant raises two issues on appeal: (1) that the Commission erred in finding that the appellee sustained an injury arising out of and in the course of his employment; and (2) alternatively, that the Commission erred in finding that the appellee’s period of temporary total disability and attendant expenses were causally related to the injury. We disagree and affirm the Commission’s ruling.
Since 1964, appellee had worked for appellant as a “B-Operator,” with duties that required him to perform work on boilers. On September 24, 1994, while obtaining a water sample from a boiler, appellee stepped in a puddle covered with algae, slipped, and turned his left knee. He reported the injury to his foreman the same day, but did not seek immediate medical attention because he thought the injury was a sprain and would heal on its own. Six weeks after the injury, appellee sought treatment for his left knee from Dr. D.L. Toon, his family physician, who prescribed medication for his injury. Appellee had seen Dr. Toon regarding knee problems in the past, which is a source of contention by the appellant. Appellee returned to light-duty work at the direction of his supervisors.
On April 27, 1995, appellee sought treatment from Dr. Toon again for an unrelated heart problem and underwent a treadmill stress test. As the speed of the treadmill increased, the condition of appellee’s left knee worsened. As a result of appellee’s problems with his knee, Dr. Toon determined that he was temporarily and totally disabled from April 27, 1995, through May 27, 1995. In an opinion filed April 8, 1997, the Commission affirmed the decision of the ALJ finding that the appellee proved by a preponderance of the evidence that his knee injury was causally related to his employment and that he was entitled to temporary total disability benefits.
Appellant first contends that the Commission erred in finding that the appellee sustained an injury arising out of and in the course of his employment. In reviewing the factual findings of the Commission, we view the evidence in the light most favorable to those findings, and must affirm if the findings are supported by substantial evidence. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997).
Appellee had the burden to prove the compensability of his claim by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). The main issue of this case, whether appellee’s left knee problems were causally related to his employment, hinges on credibility. Questions of credibility are matters within the province of the Workers’ Compensation Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). Appellee was the only witness at the hearing, and no one witnessed the September 24, 1994, accident. After the accident, appellee immediately notified his foreman. He waited for approximately six weeks before seeking medical attention because he thought he had only sprained his knee and that it would eventually heal. Appellee initially treated his pain with over-the-counter pain medications, but his pain continued to worsen over time. Appellee experienced increased pain while walking on a treadmill at a fast pace as part of a stress test to monitor his heart. Thereafter, Dr. Toon opined that appellee was temporarily and totally disabled from April 27, 1995, until May 27, 1995.
Appellant points to the entries found in Dr. Toon’s medical notes that appellee sought medical treatment in 1980 for back pain that radiated down his left leg and into the knee. Other reports in November and December 1984 indicate that appellee sought treatment for pain in his left knee. Appellee explained that he never had left knee problems prior to the September 1994 accident, but that he had seen Dr. Toon in 1991 for right knee pain after a cow ran into him. Appellee explained that Dr. Toon must have made a mistake in documenting left knee pain.
We cannot undertake a de novo review of the evidence and are limited by the standard of review in workers’ compensation cases. Although there are contradictions in the evidence, it is within the province of the Workers’ Compensation Commission to reconcile conflicting evidence and to determine the true facts. Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). The issue is not whether this court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the conclusion of the Workers’ Compensation Commission, its decision must be affirmed. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996). The Commission’s decision on this issue is supported by substantial evidence.
For its second assignment of error, appellant argues, alternatively, that the Commission erred in finding that appellee was entided to temporary total disability and medical benefits, contending that they are not causally related to his injury. Appellant raises the fact that appellee continued to perform his regular job duties for a period of approximately seven months following his September 1994 injury. Appellant suggests that appellee did not begin experiencing problems with his left knee until he took the treadmill stress test, and that this incident could not trigger disability benefits because the injury was not related to his work. Appellant alternatively argues that appellee’s disability, if any, resulted from an independent intervening cause.
Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Roberson, supra. There is evidence in the record that supports the conclusion that appellee’s healing period had not ended. He testified that his knee had been painful since the September 1994 injury and remained painful before he took the treadmill stress test, but that the pain worsened in intensity during the test. The Commission believed his testimony, and we do not second-guess its credibility judgments. Because appellee was unable to perform his work duties until his knee had healed, Dr. Toon determined that appellee was temporarily totally disabled for a month.
Turning to appellant’s argument that appellee’s disability resulted from an independent intervening cause, the Commission determined that the increased pain appellee suffered after the stress test was a recurrence of the September 1994 injury. The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Guidry v. J & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). The Commission found appellee’s testimony that he did not reinjure his left knee during the treadmill stress test to be credible. Appel-lee’s knee was already causing him pain, which intensified during the stress test. Taking the stress test was not an activity that was unreasonable under the circumstances.
Affirmed.
Pittman, Neal, Meads, and Roaf, JJ., agree.
Arey, J., dissents. | [
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Olly Neal, Judge.
Appellant pled guilty on September 20, 1993, to possession of methamphetamine in violation of Arkansas Code Annotated § 5-64-401 (Repl. 1993), and was sentenced to a three-year term of imprisonment. The imposition of appellant’s prison sentence was purportedly suspended upon certain conditions. The State filed its petition to revoke his probation on September 19, 1996, the final day of his probationary period, and appellant was arrested on September 23, 1996. After a hearing on the State’s petition, appellant’s probation was revoked, and he was sentenced to ten years in the Arkansas Department of Correction, with seven years suspended. He argues on appeal that his sentence was imposed illegally and that the evidence was insufficient to support the revocation of his probation. We agree that the trial court exceeded its statutory authority in setting appellant’s sentence, and, therefore, we reverse and dismiss, based on the trial court’s lack of jurisdiction.
Although appellant was arrested for violation of an order of protection, after his period of probation had already expired, the State filed its revocation petition within the probationary period.
During a hearing on the charge of violating the order of protection appellant responded to the prosecuting attorney’s question: “Do you have any devices on [your ex-wife’s] phones or on her phone lines at her residence that you have put there?” by replying “I did at one time.” This testimony was made a part of the record of the revocation proceedings without objection from appellant. Appellant also admitted during the revocation hearing that he placed an electronic recording device on his ex-wife’s telephone line and intercepted some of her private conversations, and stated that he did so “sometime between January 1996 and December 1996.” Appellant’s own testimony was clearly sufficient to establish a violation of Arkansas Code Annotated § 5-60-120 (Repl. 1993), Interception and recording.
Appellant’s second argument is that his sentence is illegal in that the trial court acted in excess of its statutory authority when it sentenced him to a period of imprisonment greater than “the fixed term remaining on the suspended sentence.” Appellant’s argument, which is premised on Arkansas Code Annotated § 5-4-309(f) (Repl. 1993), assumes that he received an actual sentence to a term of imprisonment after his 1993 guilty plea. After reviewing the language the court used in the 1993 judgment that was entered upon appellant’s guilty plea, we must agree. The court’s order states in relevant part:
The defendant John Alvin Lewis, entered his plea of guilty pursuant to Act 346 of 1975 to the reduced charge of Possession of a Controlled Substance (C Felony) [Methamphetamine] and upon recommendation by the Prosecuting Attorney, punishment is fixed at three (3) years in the Department of Correction, with imposition of said sentence suspended .... [Emphasis added.]
Because the court used the term “fixed” in reference to appellant’s sentence, and because it stated a specific time that appellant had to serve, we cannot say that the court effectively suspended the imposition of appellant’s sentence. See Lee v. State 299 Ark. 187, 772 S.W.2d 324 (1989); and Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). Our supreme court noted in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980):
There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with Section 41-803 by the suspension of the imposition of sentence, rather than by the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, as is authorized by Ark. Code Ann. § 41-1208(6) .... We should, however acknowledge that Section 41-1208(6) was partially repealed by implication in 1979. (Decision under prior law.)
Where a trial court imposes a definite sentence upon acceptance of a guilty plea or a finding of guilt, and orders that the execution of the sentence be suspended, Arkansas Code Annotated § 16-93-402(e)(5) (Repl. 1997) limits the court’s sentencing authority to imposition of a sentence not exceeding the length of the sentence originally imposed. Culpepper, supra.
Based on the foregoing discussion, we find that the trial court was without authority to sentence appellant on the original charge of possession of a1' controlled substance to more than the time remaining on his original three-year fixed sentence. Because appellant’s original fixed sentence expired on September 20, 1996, three days before appellant was arrested, we reverse and dismiss.
975 S.W.2d 445
Reversed and dismissed.
Jennings and Stroud, JJ., agree. | [
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John E. JENNINGS, Judge.
Glenn Edward Whitham was convicted of manufacturing a controlled substance, methamphetamine, and sentenced to thirty years’ imprisonment. Appellant argues that the trial court erred in denying his motion to quash the search warrant and suppress the evidence. We affirm on other grounds.
On February 9, 1998, Bobby Pierce went to his girlfriend’s apartment in Horatio where appellant was sleeping in one of the bedrooms. After being awakened, appellant began smoking methamphetamine and explaining how to cook it. He asked Pierce to get some pseudoephedrine which was needed to prepare methamphetamine, and it was decided that the cooking would take place next door at the Wallings’ apartment. When Pierce left to get the pseudoephedrine, he, instead, contacted his brother who was a member of the Drug Task Force and informed him of what was about to transpire. The police then provided Pierce with the pseudoephedrine which he took to appellant who immediately began breaking apart the pellets. Officers obtained a search warrant for the Wallings’ apartment that was executed at 1:00 a.m. on February 10, 1998. Appellant was present along with what was described as a “meth lab.”
Appellant makes several arguments on appeal. He argues that some of the facts set out in the affidavit for the search warrant were inaccurate and consisted of hearsay, and he argues that the conclusion that the informant was reliable was not sufficient to satisfy the particular facts requirement of Ark. R. Crim. P. 13.1(b). He also contends that the magistrate did not consider the reliability of the informant when issuing the warrant. In addition, appellant maintains that the affiant gave the magistrate several pieces of misleading information. Finally, he argues that the facts do not justify the nighttime search.
Our review of the evidence indicates that appellant has failed to establish that he has standing to contest the legality of the search. A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person’s premises. See Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). The defendant has the burden of establishing standing. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997). Although an overnight guest in a home may claim the protection of the Fourth Amendment, one who is merely present with the home owner’s consent may not. Minnesota v. Carter, 525 U.S. 83 (1998). The only information pertinent to this issue is the fact that appel lant had been sleeping in apartment #49, and, specifically, not apartment #50 that was the object of the search. There is simply no evidence to suggest that appellant was an overnight guest in the Wallings’ apartment. Furthermore, there was no evidence presented regarding appellant’s relationship to the Wallings or that appellant had any other purpose in the Wallings’ apartment aside from his illegal activity. We cannot reach the constitutionality of the search where appellant has failed to show that he had a reasonable expectation of privacy in the apartment that was ultimately searched. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). We will affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998). Because we find that appellant lacked standing to contest the search, his conviction is affirmed.
Affirmed.
Pittman and Neal, JJ., agree. | [
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Judith ROGERS, Judge.
This is an appeal and cross-appeal from the Arkansas Workers’ Compensation Commission. We reverse and remand on direct appeal. We affirm on cross-appeal.
Wilma Castleberry has been a factory worker most of her life. She has a ninth-grade education. In the 1980s, Castleberry suffered from carpal tunnel syndrome for which she underwent surgery. She began working for Elite in January 1994 and was working there on February 9, 1995, when she was injured. Her duties involved making 300 to 500 lampshades every day. On February 9, while turning a lampshade, Castleberry felt a sharp pain in her wrist. She returned to work the following day, but because of the pain in her wrists was unable to continue and has not worked since. She testified that she experiences numbness in both hands, swelling, aching, and an inability to move her thumbs or twist her wrists. Castleberry’s injury was accepted as compensable initially, and Elite paid medical benefits and temporary total disability (TTD) benefits. They unilaterally discontinued the TTD payments on April 6, 1995.
Castleberry initially sought treatment with Dr. Bibb who recommended she see Dr. Howser, a neurosurgeon in Memphis. On April 26, 1995, Dr. Howser noted that an EMG revealed Castle-berry to be suffering from carpal tunnel syndrome (CTS) and recommended surgery. Castleberry moved to Michigan to live with her family because she was unable to support herself without disability payments. Dr. Howser agreed to send her records to Michigan so that she could receive treatment. On November 21, 1995, Cas-tleberry was evaluated by Dr. Leslie Wong. Although Castleberry had only requested a change of physician, Elite’s compensation carrier scheduled an Independent Medical Examination (IME) with Dr. Wong. At the November 21, 1995, examination, Dr. Wong found some subjective evidence of CTS and ordered an EMG for clarification. He reported these findings to the insurance company’s claims manager in charge of Castleberry’s file by letter that same day. The EMG was performed by Dr. Kreitsch on November 29, 1995, and reportedly ruled out CTS. Dr. Kreitsch noted, however, that the evidence of CTS may have been stronger when the EMG was done by Dr. Howser closer to the date of the injury. These results were forwarded to Dr. Wong that same day.
On December 5, 1995, a hearing was conducted before Judge Harrison. Elite did not enter the report of Dr. Wong or the results of the EMG into evidence. In an opinion which was not issued until April 24, 1996, Judge Harrison held that Castleberry had sustained her burden of proof. The opinion stated that Castleberry was entitled to “ongoing medical care under the direction of Dr. Wong,” and TTD “until she has obtained appropriate medical care and is released to return to work.” Neither party appealed.
On December 12, 1995, Castleberry returned to Dr. Wong and was diagnosed with de Quervain’s syndrome. Castleberry continued to seek treatment for her compensable injury. She first attempted to return to Dr. Wong for treatment as specifically allowed by the order of April 24, 1996. Dr. Wong refused to treat her because he had only been authorized initially to conduct an IME, and it is his practice not to continue treatment of patients on whom he conducts an IME. By letter dated August 1, 1996, Dr. Wong informed Elite that Castleberry was only partially disabled, not totally, when he examined her in November and December. As a result of this letter, Elite unilaterally decided that Casdeberry was only entided to TTD benefits through November 21, 1995, a date preceding the hearing and order awarding benefits. In August 1996, Elite paid TTD benefits in the amount of $4,492.85 to cover the period of April 7, 1995, until November 21, 1995.
Next Castleberry sought treatment from Dr. Sebright, but testimony reveals that Elite’s compensation carrier failed to set up the appointment. Castleberry then went to Dr. Hollenbech. Elite informed her by letter March 20, 1997, that they were “not willing to authorize the examination with Dr. Hollenbech.” Although they asserted that they were “not denying medical treatment,” Castle-berry was never treated by Dr. Hollenbech. Elite did inform Castle-berry that they would allow her to seek treatment with a new physician and requested a list of physicians from whom to choose. She never provided this list. She did attempt to obtain treatment from Dr. Conduit, but that treatment was refused by Elite’s insurance carrier as well.
Finally, on May 6, 1997, Castleberry returned to Memphis in her search for treatment and was examined again by Dr. Howser. He recommended another EMG and a consultation with Dr. Knight, an orthopedic surgeon. Elite again denied treatment. As of July 1997, Dr. Howser’s opinion was that Castleberry suffered from both carpal tunnel syndrome and de Quervain’s syndrome. He stated that Castleberry had not yet reached maximum medical improvement.
Following the denial of the treatment recommended by Dr. Howser in 1997, Castleberry again filed a claim in the Workers’ Compensation Commission. She sought benefits from November 21, 1995, until such time as she has received appropriate treatment and been released to return to work, as Judge Harrison’s opinion had granted her. She also sought medical benefits for treatment of her compensable injury, as had previously been granted by Judge Harrison. A hearing was held May 7, 1998, which was not held before Judge Harrison, but before Judge Elizabeth Hogan. In an order filed July 24, 1998, Judge Hogan granted Castleberry additional TTD benefits from November 21, 1995, until December 12, 1995. She ordered Elite to pay a twenty percent penalty for the benefits not paid within forty-five days of Judge Harrison’s order. She also granted additional medical benefits for treatment of Castle-berry’s de Quervain’s syndrome “based on objective medical findings. If there are no objective signs of de Quervain’s syndrome on the left, or if the bilateral symptoms have abated with inactivity, then respondents are not liable for further medical treatment.” The full Commission affirmed and adopted the opinion of Judge Hogan.
Castleberry appeals from the award of benefits from November 21 until December 12, 1995, claiming error under the theory of res judicata because the original order specified that the benefits should be ongoing until she receives treatment and is released to return to work. She also appeals the limitation of her medical treatment to the de Quervain’s syndrome as supported by objective findings. Elite cross-appeals the award of benefits beyond November 21, 1995, and the imposition of the twenty-percent (20%) penalty for late payment of benefits. We find that the Commission improperly disregarded the April 24, 1996, opinion by Judge Harrison that was never appealed. That decision is res judicata. Accordingly, we reverse and remand on direct appeal and affirm on cross-appeal.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light 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. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998); 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. Jeter, supra; Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983). We first address the issue of res judicata.
Res Judicata
Castleberry argues that the Commission erred by not following the law of the case. She asserts that in 1996 Judge Harrison awarded her temporary total disability “until she has obtained appropriate medical care and is released to return to work.” That order was not appealed. In the opinion adopted by the full Commission, Judge Hogan awarded additional benefits, but only until December 12, 1995. Castleberry argues that this is contrary to the order of Judge Harrison because she has neither obtained appropriate medical care nor been released to return to work. Therefore, she argues, res judicata prevents the discontinuance of benefits on December 12, 1995. We agree.
Res judicata applies where there has been a final adjudication on the merits of the issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334 (1998); Perry v. Leisure Lodge, 19 Ark. App. 143, 718 S.W.2d 114 (1986). The doctrine of res judicata is applicable to decisions of the Commission. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996); Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986). The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993); Pine Bluff Warehouse v. Berry, 51 Ark. App. 139, 912 S.W.2d 11 (1995).
In the case at hand, the award of temporary total disability benefits was an issue decided in the 1996 opinion from which no appeal was taken. That decision granted benefits to Castleberry until such time as “she has obtained appropriate medical care and is released to return to work.” Res judicata bars relitigation of that determination unless there is evidence of change following the previous order. See Cariker v. Ozark Opportunities, 65 Ark. App. 60, 987 S.W.2d 736 (1999); Tuberville, supra. Following Judge Harrison’s order of April 24, 1996, Elite paid benefits only through November 21, 1995. Castleberry petitioned the Commission for further payment of benefits in compliance with Judge Harrison’s order. The Commission only awarded her benefits until December 12, 1995. In arriving at this date for the termination of disability benefits, the Commission relied upon the opinion of Dr. Wong that Castleberry was only partially disabled when he saw her, and that her carpal tunnel syndrome appeared to have improved with rest. The Commission noted the lack of medical treatment provided to Castleberry.
The Commission erred by terminating Castleberry’s TTD benefits as of December 12, 1995, because, unless there was evidence of change in her condition, the Commission was bound by res judicata to follow the decision of Judge Harrison that Castleberry was temporarily and totally disabled until such time as she received appropriate medical care and was released to return to work. The evidence upon which the Commission relied was available to Elite at the time of the hearing before Judge Harrison. Although Elite argues that the reports of Dr. Wong were not taken into account by Judge Harrison in her order granting benefits, the failure of Elite to introduce the medical evidence was its own decision. Elite had a full and fair opportunity to litigate the issue and could have introduced the results of the EMG at the hearing as well as Dr. Wong’s report that the only evidence of CTS on November 21, 1995, was subjective in nature. See Berry, supra.
Nor does the new evidence presented to the Commission support a finding of changed circumstances. The only new evidence following the order of Judge Harrison was the opinion of Dr. Howser that Castleberry had not yet reached maximum medical improvement and that she needed additional treatment for her CTS and de Quervain’s syndrome. Dr. Howser was the only physician to examine Castleberry after the award of benefits. Because there is insufficient evidence to support a finding of changed circumstances, the Commission should have limited its findings to whether the conditions established by Judge Harrison’s April 24, 1996, order had been met.
The conditions specified by Judge Harrison had not been met. In fact, the Commission found that Castleberry had not received appropriate medical care as had been ordered by Judge Harrison. Following the April 24, 1996, order, Castleberry sought treatment from six separate physicians, yet Elite refused to authorize any. Elite’s actions have resulted in the denial of all medical treatment for a condition which was held to be compensable by the Workers’ Compensation Commission four years ago. The Commission also noted that Dr. Wong’s letter was silent as to issues of employment capability. The evidence shows that Dr. Howser likewise never released her to return to work. He only noted in his 1997 report that Castleberry had not yet reached maximum medical improvement. Because the conditions of Judge Harrison’s order have not been met, Castleberry is entitled to ongoing disability benefits until such a time as she has received appropriate medical treatment and is released by her doctor to return to work as Judge Harrison ordered on April 24, 1996. See Harvest Foods, supra. We therefore reverse and remand this matter to the Commission for the award of benefits consistent with this opinion.
On cross-appeal, Elite argues that the Commission erred by extending the temporary total disability payments until December 12, 1995. Elite argues that it was only liable for benefits until November 21, 1995, the point at which it unilaterally terminated benefits despite Judge Harrison’s order to the contrary. As has been discussed at length above, Castleberry’s entitlement to benefits is ongoing as a result of Elite’s failure to provide the medical care awarded in 1996. Consequently, Elite’s challenge to the award of benefits from November 21 until December 12, 1995, is moot.
Additional Medical Benefits
Castleberry next argues that the Commission erred by limiting her treatment to only the de Quervain’s syndrome as evidenced by objective findings. Again, Castleberry was awarded benefits for the treatment of her carpal tunnel syndrome in 1996. The only new medical evidence available to the Commission is the opinion of Dr. Howser from 1997 that appellant is still suffering from carpal tunnel syndrome along with de Quervain’s syndrome and is in need of treatment. The doctrine of res judicata bars the Commission from now denying Castleberry the treatment which she has previously been awarded. See Harvest Foods, supra.
Likewise, the Commission erred in requiring Castle-berry to provide objective evidence of her continued need for treatment. Appellant is entitled to continued medical treatment until the end of her healing period. See Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. Whether an employee’s healing period has ended is a factual determination to be made by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). However, we do not require objective evidence that the healing period continues. Graham, supra. Again, the only evidence before the Commission was Dr. Howser’s report that Castleberry had not reached maximum medical improvement. Castleberry is thus entitled to additional medical treatment for her compensable carpal tunnel syndrome and de Quervain’s syndrome.
Twenty Percent Penalty
On cross-appeal, Elite contests the award of a twenty-percent penalty arguing that it was not supported by substantial evidence. Arkansas Code Annotated section ll-9-802(c) provides:
If any installment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof....
The judgment awarding Castleberry benefits was entered April 24, 1996. Elite paid benefits on August 8, 1996, far beyond the fifteen days provided by statute. Substantial evidence supports the imposition of the penalty. Elite now argues that because the award of benefits was to a date uncertain, they should not be held responsible for their failure to promptly pay because they were unsure of their obligations under the order. This same argument failed in Harvest Foods, supra, where benefits were awarded to a date uncertain in an order which was not appealed. As in Harvest Foods, there is no evidence of proof of payment until several months after it became due. Therefore, the Commission did not err in imposing the penalty.
Reversed and remanded on appeal; affirmed on cross-appeal.
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ROBIN F. WYNNE, Associate Justice
It Chad Steve Laymon appeals from his conditional plea of guilty to a charge of driving while intoxicated, sixth offense. He argues on appeal that his conviction violated the ex post facto clauses of the United States Constitution and the Constitution of the State of Arkansas. This case was certified to us by our court of appeals pursuant to Arkansas Supreme . Court Rules l-2(b)(l) and l-2(d) (2015), as presenting an issue of first impression regarding whether an appeal is allowed from appellant’s conditional plea. We affirm.
Appellant was charged by information with a violation' of Arkansas Code Annotated section' 5-65:-122 (Supp. 2013), which provides that a sixth or subsequent offense of driving while intoxicated occurring within ten years of a prior offense is a Class B felony. Section 5-65-122 was enacted by the Arkansas General Assembly in 2013, and the offense with which appellant was charged occurred on March 14, 2014. Appellant filed a pretrial motion to |2suppress and dismiss in which he argued that the use of his prior driving-while-intoxicated convictions to.enhance the punishment for the most recent offense would violate the ex post facto clauses of the federal and state constitutions. He also argued that the State should not be allowed to use his prior convictions because he was not represented by counsel when those convictions were entered. The trial court denied the motion, finding that section 5-65-122 did not violate the ex post facto clauses of either the federal or the state constitution and that appellant had waived his right to counsel when his prior convictions were entered. After the motion was denied, appellant entered a conditional plea of guilty to the charge of driving while intoxicated, sixth offense. The trial court sentenced him to ninety-six months’ imprisonment in the Arkansas Department of Correction, with an additional forty-eight months’ suspended imposition of sentence. This appeal followed.
We must first determine whether we have jurisdiction to consider the appeal. As noted above, appellant entered a conditional plea of guilty. Arkansas Rule of Criminal Procedure 24.3(b) (2015) provides as follows:
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,
(i) to review an adverse determination of a pretrial motion to suppress seized evidence or a custodial statement;
(ii) to review an adverse determination of a pretrial motion to dismiss a charge because not brought to trial within the time provided in Rule 28.1(b) or (c); or
(iii) to review an adverse determination of a pretrial motion challenging the constitutionality of the statute defining the offense with which the defendant is charged.
IsOnly subsection- (b)(iii) of Rule 24.3 could apply to this appeal. Subsection (b)(iii) was added to the rule via an amendment in 2012, and no opinion of-this court to date has addressed the issue of what type of constitutional challenge falls under the subsection.
Court rules are construed using the same criteria, including canons of construction, that are used to interpret statutes. Stanley v. Ligon, 374 Ark. 6, 285 S.W.3d 649 (2008). A court rule is to be construed just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id.
There are two primary ways to challenge the constitutionality of a statute: an as-applied challenge, in which the court assesses the merits of the challenge by considering the facts of the particular case in front of the court, not hypothetical facts in other- situations, and a facial challenge, which seeks to invalidate the statute itself. 16 C.J.S. Constitutional Law § 243 (2005). Appellant’s challenge appears to be an as-applied challenge to the constitutionality of section 5-65-122. Rule 24.3(b)(iii) applies expressly to pretrial motions challenging the constitutionality of a statute. There is no language in the rule to indicate that only a particular type" of constitutional challenge falls under the rule. Therefore, construing the rule just as it reads, an' appeal can be heard from' a conditional plea following the denial of a pretrial motion' challenging the 'constitutionality of the statute defining the offense to which the defendant pled guilty, regardless of whether the challenge to the statute is an as-applied challenge or a facial challenge. This being the ease, we have jurisdiction to consider the appeal.
As to the merits, appellant argues that his conviction under section 5-65-122 violates'| 4the ex post facto clauses of the United States Constitution and the Constitution of the State of Arkansas. Specifically, he contends that the use of his prior convictions for driving while intoxicated, which occurred prior to the passage of section 5-65-122, to enhance the sentence for the most recent violation, which occurred in 2014, violates the ex post facto clauses because it increased his punishment. A law is prohibited as ex post facto when it authorizes punishment for a crime because of an act previously committed, makes more burdensome the punishment for a crime after its commission, or deprives one charged with a crime of any defense that was available according to, law at the time when thé act was committed. Eichelberger v. State, 323 Ark. 551, 553, 916 S.W.2d 109, 110 (1996) (emphasis in original) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)).
In Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977), a defendant who was convicted twice in 1974 for driving, under the influence and charged with the offense a third time in 1976, argued on appeal that treating the 1976 offense as a third offense under Act 931 of 1974 would make that law ex post facto as to him because the first two offenses occurred.before the law .was passed. In affirming the enhancement of his punishment, we stated,
All of the authorities relied .upon by [Sims] do, indeed hold that a law which makes a crime punishable in a manner in which it was not punishable at the time it was committed is an invalid ex post facto law. But these cases have no application here, because the offense with which [Sims] was charged was committed after the adoption of Act 931 of 1975. The enhanced penalty provided for a third offense by that act is not for the first or second offense, but is for the third offense, which is considered as ag-gravkted by reason of the preceding offenses.
Sims, 262 Ark. at 289, 556 S.W.2d at 142 (emphasis added). Here, as in Sims, the crime with which appellant was charged occurred after section 5-65-122 was enacted. Appellant contends 15that our decision in Sims, as well as our decision in Garrett v. State, 347 Ark. 860, 69 S.W.3d 844 (2002), is not dispositive because the enactment of section 5-65-122 increased the penalty for a sixth DWI offense. However, as stated in Sims, Act 931 of 1976 enhanced the penalty for a third offense. Based on our holding in Sims and the fact that section 5-65-122 did not make more burdensome the punishment for appellant’s sixth DWI offense after the commission of that offense, we hold that the trial court did not err in denying appellant’s motion to suppress and dismiss.
Appellant also argues on appeal that it violated due process to charge him with a sixth violation when he was not given notice that his prior DWI convictions could be revived and that it violated due process to apply the ten-year look-back provision to him when he could have had his prior misdemeanor DWI convictions sealed. ■ Neither of these arguments is preserved for review. Appellant did not raise either of these arguments before the trial court. We will not consider arguments, even constitutional ones, that are raised for the first time on appeal. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Also, failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). To the extent it could conceivably be said that appellant did raise the arguments below, it is clear that he failed to obtain a ruling from the trial court on either of them. Therefore, we cannot consider the arguments .on appeal.
Affirmed.
. Appellant has abandoned this argument on appeal. | [
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WAYMOND M. BROWN, Judge
| Appellant appeals from . the circuit court’s judgment finding him guilty of driving while intoxicated — first offense. On appeal, appellant argues that 1) the Fourth Amendment to the .United States Constitution, along with Article II, Section 15 of the Arkansas Constitution, requires reversal of his conviction based on the illegally conducted sobriety checkpoint; and 2) the circuit court erred in its failure to recognize the lack of probable cause to support any further roadside detention of appellant. We reverse.
On September 20, 2012, appellant encountered a sobriety checkpoint being conducted, by the Arkansas State Police on Interstate 540. He was arrested there and later charged with driving while intoxicated- — first offense. A trial on the matter was held on July 29, 2014. The circuit court issued its ruling finding defendant guilty in a judgment entered on July 3Í, 2014.
12This timely appeal followed.
When making his initial motion below, appellant’s counsel stated that “at this point I have a motion, and that’s that this is an illegal roadblock.” Then, when the State rested, he stated “we rest just with our very strong objection to the roadblock. And, again, cité a litany of cases, but for Arkansas State versus Alan [sic], 2013 [sic] Ark. 35, 425 S.W.3d 753, which quotes Price v. Delaware, Brown v. Texas.” He also cited Delaware v. Prouse and Mullinax v. State. Appellant’s counsel moved that the roadblock was illegal and therefore unconstitutional. He did not make any specific arguments involving the words suppress or dismiss, or any variation thereof. There was no prior hearing. Furthermore, it appears that even the circuit court was not clear on what type of motion appellant was making for it wrote in its judgment that “[t]he motions to suppress and/or dismiss of Defendant are denied.” On the record before this court, there is not sufficient evidence to determine whether appellant made a motion to suppress the evidence or a motion to dismiss the case, or both. But the circuit court denied both in its order; accordingly, we address both.
When reviewing a circuit court’s denial of a motion to suppress, we make an independent determination based on the totality of the circumstances. We defer to the [ ¡¡circuit court’s credibility and weight-of-the-evidence determinations, and we reverse only if the court’s decision is clearly against the preponderance of the evidence.
A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. We will affirm a circuit court’s denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. In reviewing the sufficiency of the evidence, we review all the evidence, including any that was erroneously admitted. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.
A Fourth Amendment seizure occurs when a vehicle is stopped at a roadblock or checkpoint. The question then becomes whether such a seizure is reasonable under the pFourth Amendment. The permissibility of vehicle stops made on less than reasonable suspicion of criminal activity must be judged in each case by balancing the effect of the intrusion on the individual’s Fourth Amendment rights against the promotion of a legitimate government interest. There is no doubt as to the magnitude of the State’s interest in eradicating drunk driving. The United States Supreme Court has stated the following in Brown v. Texas regarding this balancing test:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the-degree to-which the seizure, advances the. public interest, and the severity of the interference with individual liberty.
A - central, concern .in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Some of the various factors to be considered in applying the balancing analysis include the supervision of the individual officers in the field, the limited discretion of the officers in stopping vehicles, the amount of interference with legitimate traffic, the subjective intrusion Ron the part of the travelers, the supervisory control over the operation, and the availability of a less intrusive means of promoting the legitimate government interest.
Appellant argues that the sobriety checkpoint that led to his arrest was unconstitutional and unlawful because it was conducted in an illegal manner. The State argues that compliance with. Arkansas State Police (ASP) policy and procedures, as' was indicated on the ASP Sobriety Checkpoint Plan, is sufficient to support a finding that the checkpoint was conducted in a constitutionally acceptable manner. However, the State provides no authority to support this argument. We agree with appellant that this sobriety checkpoint was conducted in an illegal manner.
Corporal Dwight Lee testified that “[s]ometimes roadblocks are assigned and if [the supervisors] don’t assign them, I will make a call and say, you know, we’re going to do a checkpoint.” He testified that the supervisors “don’t actually know where” the checkpoint is. He stated that “[i]n this case, it was most‘likely [his] discretion” in setting up the checkpoint. He described himself as “an officer in the field” and stated that “[i]t is the officer in the field using his discretion as to what would happen at the roadblock.” He further noted that “as far as dealing with individuals we come in contact with, traffic flow, location, and times, all of that is the officer in the field.” They normally would only call the supervisor if there was some major occurrence like-a collision or chase.
Corporal Lee testified that the officers do not keep records of the number of cars they stop, only “if [they] wrote a ticket, or 'anything like that.” Supervisors “[formally” | ^received information on the checkpoint after the checkpoint had been completed. Corporal Lee stated that supervisors would not have any direct input on the plan, simply being notified after. When questioned by the circuit court, Corporal Lee agreed that calling up officers and telling them they were going to set up a checkpoint was “all there [was]” to the procedure for the checkpoint; that he did not go over the plan with the officers or talk with them about it beyond the intended duration of the checkpoint; and that they do not even mention checkpoints to the supervisors until after they have been completed because the supervisors expect the checkpoints to be done. He restated that he sends, the paperwork in after the checkpoint. Furthermore, he agreed that the “main purpose” of setting up a checkpoint was to keep the officers from getting in trouble.
Trooper Brandon Margis testified that sometimes the officers received emails from the supervisor instructing them to set up a checkpoint, but sometimes the officers in the field — sometimes including sergeants, but not always — just got together and decided to have a checkpoint. He testified that they intended to stop every vehicle, but would use their discretion to allow vehicles to “go through” when traffic was backed up until it was no longer backed up.
While the plan is not required to be written, there must be a plan. Officer testimony appears to belie the notion that there was a plan. Their testimony purports that there was a plan; however, there was no. supervision over the checkpoint and there was no limitation on the discretion of the officers in the field. Furthermore, while only a factor and not a 17requirement, the officer’s failure to record how many vehicles they came in contact with beyond those ticketed or arrested prevents any possible determination on the effectiveness.of the checkpoints.
The State says in its brief that Corporal Lee did not brief the officers because the same procedures were always followed; The State then gives a procedure that was followed. The State quotes the Sobriety Checkpoint Plan form submitted for the September 20, 2012 checkpoint to support the procedure it outlined. However, this' document was a form to be completed by an officer for a checkpoint. The State failed to direct this court to any evidence in the record — documentary or testimonial — regarding official department procedure for police checkpoints and this court found none in the record. Accordingly, we cannot say that the September 20, 2012 checkpoint was ■ conducted according to a plan or that it was conducted in ■& manner exhibiting explicit, neutral limitations .on the officer’s conduct. The circuit court erred in finding that the checkpoint was constitutional. Accordingly, we reverse the circuit court’s denial of appellant’s motion to suppress.
The only evidence at trial was specific to the unconstitutional checkpoint and the fruits thereof.'■ Because there was no other evidence to support the conviction, we also reverse the circuit court’s denial of appellant’s motion to dismiss.
Because we reverse on appellant’s first point on appeal, we do not address his second argument.
Reversed and dismissed.
Vaught, J., agrees.
Gruber, J., concurs.
. 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
. 53 Ark. App. 176, 920 S.W.2d 503 (1996).
. Jacobs v. State, 2013 Ark. App. 177, at ¶ 5, 427 S.W.3d 83, 87 (citing Gilbert v. State, 2010 Ark. App. 857, 379 S.W.3d 774).
. Id.
. Stewart v. State, 2010 Ark. App. 9, at 2, 373 S.W.3d 387, 389 (citing Cora v. State, 2009 Ark. App. 431, 319 S.W.3d 281).
. Id. (citing Cora, supra).
. Id. (citing LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991)).
. Foster v. State, 2015 Ark. App. 412, at ¶ 4, 467 S.W.3d 176, 179 (citing Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216).
. Id.
. Jacobs, 2013 Ark. App. 177, at ¶ 6, 427 S.W.3d at 87 (citing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); Mullinax v. State, 327 Ark, 41, 938 S.W.2d 801 (1997)).
. Id. (citing Mullinax, supra).
. Partee v. State, 2010 Ark. App. 805, at ¶ 5, 379 S.W.3d 82, 84 (citing Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989)).
. Mullinax, 327 Ark. at 46, 938 S.W.2d at 804 (citing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990)).
. 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (internal citations omitted).
. Partee, 2010 Ark. App. 805, at ¶ 5-6, 379 S.W.3d at 85 (citing Theresa Ludwig Kruk, Annotation; Validity of Routine Roadblocks by State or Local Police for Purpose of Discovery of Vehicular or Driving Violations, 37 A.L.R,4th 10 (1985)),
. Mullinax, 327 Ark. at 49,-938 S.W.2d at 806.
. Id., 327 Ark. at 47, 938 S.W.2d at 804 (citing Sitz, 496, U.S. at 454-55, 110 S.Ct. 2481). | [
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KAREN R. BAKER, Associate Justice
| Appellant, Howard Wood, entered a guilty plea to one count of sexual assault in the first degree and was sentenced to thir ty years imprisonment. On October 7, 2013, pursuant to Rule 37.1 .of the Arkansas Rules of Criminal Procedure (2013), Wood filed a petition for postconviction relief. On January 10, 2014, without holding a hearing, the circuit court denied Wood’s petition.
From the circuit court’s January 10, 2014 order denying his Rule 37.1 petition, Wood appeals. In his appeal, Wood contends that the circuit court erred in denying his petition |2because: (1) defense counsel was ineffective on seven separate grounds; and (2) the circuit court erred in failing to hold an evidentiary hearing.
Standard of Review
Our standard of review in Rule 37.1 petitions is that, , “on appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. 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 |sbeen committed. [Prater v. State ] Id., 402 S.W.3d [68] at 74 [ (Ark.2012) ],” Mason v. State, 2013 Ark. 492, at 1-2, 430 S.W.3d 759 (citations omitted).
When considering an appeal from a circuit court's denial of a Rule 37 petition, the question presented is whether, 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 circuit court clearly erred in holding that counsel’s performance was not ineffective. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783i 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, 466 U.S. 668, 104 S.Ct. 2052, 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 riot have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59,106 S.Ct. 366. An appellant who has entered a guilty plea 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. Further, a petitioner under Rule 87.1 .must allege some direct correlation between counsel’s deficient behavior and the decision to enter the plea. Scott v. State, 2012 Ark. 199, 8-9, 406. S.W.3d 1, 5-6 (2012).
Additionally, where'a Rule 37 petition is denied without á hearing pursuant to Rule 37.3(a), we review the circuit court’s written findings setting forth that the petition is wholly without merit or that it is conclusive on the face of the record that the petitioner is entitled Uto no relief for clear error. See Henington v. State, 2012 Ark. 181, at 9, 403 S.W.3d 55, 62.
I. Ineffective Assistance of Counsel
With these standards in mind, we now turn to the issues raised by Wood. Wood asserts that the circuit cpurt erred with regard to seven separate grounds of relief on his ineffective-assistance-of-counsel argument.
A. Statutory/Charging Error
First, Wood asserts that the circuit court erred in denying Wood’s Rule 37.1 petition because defense counsel was ineffective when she did not object to the charging information on the ground that Wood was charged with violating a statute, Ark.Code Ann. § 5-14-124(a)(3), which Wood alleges was not in effect when he committed the offense. The record demonstrates that the crime was alleged to have been committed on or around March 27, 2013. Wood alleges that the subsection he was charged under, Ark.Code Ann. § 5-14-124(a)(3), was not in effect because the legislature amended Ark. Code Ann. § 5-14-124 in Act 1044 of 2013.
Wood’s argument fails because the substantive law in effect on the date the crime wás committed controls. See Berry v. State, 278 Ark. 578, 582, 647 S.W.2d 453, 456 (1983). Here, the crime occurred on March 27, 2013, the amended legislation did not go into effect until August 2013. Thus, the amendment has no bearing on Wood’s case. See Ark.Code Ann. § 5-14-124. Counsel is not ineffective for failing to make a meritless objection. Tubbs v. State, 2009 Ark. 249, 370 S.W.3d 157. Therefore, we affirm the circuit court on this first point.
|SB. Mental Health Issues
For his second claim, Wood asserts that the circuit court erred when it denied his Rule 37.1 petition because his defense counsel failed to request a mental evaluation when she knew, or should have known, that Wood suffered from post-traumatic stress disorder (“PTSD”). Wood further asserts that the circuit court erred because it should have sua sponte ordered a mental evaluation.'
Wood presented his mental-health arguments to the circuit court in his Rule 37.1 petition, and in its January 10, 2014, order the circuit court denied his claims and held:
The fourth argument by the Defendant is that his attorney failed to inquire about his mental capacity. This allega tion is without merit_ During acceptance of the plea agreement, the Defendant was specifically asked whether he was under any mental disability or impairment. After the Defendant replied in the affirmative, the Defendant was asked whether it was anything that would keep him from understanding what we are doing today. His reply was “No, your honor.” He was then asked whether he was under in influence of any medicine or anything that would cause him to be foggy or cause any problems at all. His reply was “No, your honor.” ... As a follow up, the Court ... asked the Defendant; “On the impairment, and I hate to get personal, but I need to know what is it?” The Defendant replied; “Post traumatic stress disorder, combat related.” The Court then inquired, “Okay, so that would not affect your thought process for today?” The Defendant’s reply was “No sir.”
On appeal, Wood presents several arguments regarding his mental health and that he suffers from PTSD— but none of the arguments are meritorious. First, with regard to the requisite culpable intent, violation of Ark.Code Ann. § 5-14-124 does not require a requisite intent. See Martin v. State, 2015 Ark. 147, at 1, 460 S.W.3d 289, 290. Although Wood asserts the circuit court should have sua sponte suspended the guilty plea proceeding and he is entitled to relief, at the guilty plea hearing, Wood stated that the PTSD he claimed to suffer from did not affect his thought processes. Second, a petitioner is presumed to be competent |Rto enter a guilty plea and Wood has failed to point to specific evidence that he was not. “That is especially true in light of our rule that there is a presumption of competence which ... appellant must overcome. Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).” Sullivan v. State, 255 Ark. 376, 377, 500 S.W.2d 380, 381 (1973).
Additionally, the record does not demonstrate that the circuit court erred, because Wood did not allege that, but for defense counsel’s alleged errors, he would not have entered a guilty plea. As previously noted, in this situation, Wood must allege some direct correlation between counsel’s deficient performance and the decision to enter the plea, or Wood is procedurally barred from postconviction relief. See Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Wood has failed to meet the standard, and we affirm the circuit court.
C. Prosecutorial Misconduct
Third, Wood asserts that the circuit court erred in denying Wood’s Rule 37.1 petition because the prosecutor engaged in prosecutorial misconduct in violation of his due-process rights. Wood asserts that the prosecutor threatened to charge him with four additional counts and this threat infected the trial with unfairness and injustice.
Camacho v. State, 2011 Ark. 235, at 2, 2011 WL 2062328, held that “direct challenges such as ... prosecutorial misconduct are not cognizable in Rule 37.1 proceedings.” Additionally, a plea of guilty that is induced by the possibility of a more severe sentence does not amount to coercion. Akin v. State, 2011 Ark. 477, at 3, 2011 WL 5437536. Therefore, we do not find error and affirm the circuit court.
D. Facially Invalid Order
17For his fourth claim, Wood asserts that the circuit court erred in denying Wood’s Rule 37.1 petition because the sentencing order is facially invalid because the date on the order is- incorrect, thus rendering the order‘facially invalid. Wood contends that the error in the date evidences that his counsel entered a plea agreement without his knowledge, and the sentencing order is facially flawed.
The record demonstrates that the sentencing order indicates a date of July 2, 2013, which was the original date scheduled for the pretrial hearings. The circuit court’s order explained that on that date, the presiding judge, Judge Ramey, was in the hospital. Judge Tom Cooper sat as a special judge and continued the matter until July 16, 2013. However, as was customary, the sentencing order and other plea documents were drafted in anticipation of the July 2, 2013 hearing. ■ Then oh July 16, 2013, Judge Ramey accepted Wood’s plea. Judge Ramey utilized the previously prepared documents, indicating the July 2, 2013 date. Based on these facts and our review of the record, the date error was a merely clerical and did not affect the validity of the order; Additionally, cognizable claims are limited' to those asserting that his plea was not entered intelligently and voluntarily upon advice of competent counsel. See Polivka, 2010 Ark. 152, 362 S.W.3d 918; Camacho, 2011 Ark. 235, 2. Instead, Wood asserts that his counsel entered into a plea without his knowledge on July 2, 2013, even though his ■ signature appears on the plea documents. Thus; in his petition Wood failed to,claim that there was a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999).
IsE. Jail Time Credit
For his fifth claim, Wood asserts that the circuit court erred in denying Wood’s Rule 37.1 petition because he did not receive 1,100 days’ jail-time credit that he alleges he is entitled to based on the order.- The circuit court denied this claim and held that “it is clear from review- of the .transcript that the credit of one hundred (100) days is correct.”
Again, Wood’s claim is not a cognizable claim related to whether his plea was entered intelligently and voluntarily upon advice of competent counsel. See Polivka, 2010 Ark. 152, 362 S.W.3d 918; Camacho, 2011 Ark. 235. Further, the record does not support Wood’s argument. Wood must assert 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. Buchheit, 339 Ark. at 483, 6 S.W.3d at 111. Wood has failed to meet this standard, and we affirm the circuit court.
F. Adequate Investigation
For his sixth claim, Wood asserts that the circuit court erred in denying Wood’s Rule 37.1 petition because his counsel did not conduct an adequate investigation. Wood contends that his counsel was ineffective because she did riot read the affidavit of probable cause or discuss the case with him before he pleaded guilty.
In his petition, Wood failed to allege that counsel performed so deficiently and that Wood suffered prejudice so severe resulting from counsel’s error that, but for the error, he would not have pleaded guilty.. Conclusory statements that counsel was ineffective will not sustain a Rule 37 petition. Anderson, 2011 Ark. 488, at 5, 385 S.W.3d 783. In order to assert a cognizable |9claim for Rule 37 relief, Wood must assert facts that, if proven, would establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Wood’s petition failed to meet this standard and we affirm the circuit court.
G. Waiver of Eight to Appeal
For his seventh claim, Wood asserts that he is entitled to postconviction relief because he was coerced into waiving his right to appeal, and he was prejudiced. The circuit court denied Wood’s claim and held that “it is clear from review of the transcript and plea documents that the present matter was not taken as a conditional plea. As such the present allegation is denied.” In his petition, Wood presented an argument regarding conditional and unconditional pleas. On appeal, Wood simply argues that “[Counsel] advise[d] [Wood] that he could not appeal any portion of his conviction and instructed [Wood] to waive his right to appeal ... [Counsel] was ineffective coercing [Wood] into waiving his right to appeal and suffered prejudice by losing said ... review.”
Based on the record and Wood’s argument, Wood has failed to assert that based on the alleged ineffectiveness, he would not have pleaded guilty and would have gone to trial. Further, the record demonstrates that even if we construed his pleading to contend that he would not have entered an unconditional plea absent counsel’s errors, Wood did not claim that counsel could have recommended entering a conditional plea. Also, pursuant to Rule 1(a) of the Arkansas Rules of Appellate Procedure — Criminal (2015), “except as provided by A.R.Cr.P. 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere.”
|! (Accordingly, based on the record before us, the circuit court did-not err, and we affirm on this point.
II. The Circuit Court Erred in Not Holding an Evidentiary Hearing
Wood asserts that the circuit court also erred by not holding an eviden-tiary hearing. Arkansas Rule of Criminal Procedure.-37.3(a) (2011), provides that when 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. “It is undisputed that 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. See Bilyeu v. State, 337 Ark. 304, 987 S.W.2d 277 (1999); Luna-Holbird v. State, 315 Ark. 735, 871 S.W.2d 328 (1994).” Sanders v. State, 352 Ark. 16, 25, 98 S.W.3d 35, 41 (2003). When a petition for postconviction relief is denied without a hearing, we review the circuit court’s written findings pursuant to Rule 37.3(c) and will reverse only when the circuit court fails to make the required findings or where the circuit court’s written findings to the effect that the petition is wholly without merit or that it is conclusive on the face of the petition that no relief is warranted, are clearly erroneous. Id.
Additionally, pursuant to Rule 37,1, a petitioner has the burden of pleading “in concise, nonrepetitive, factually specific language” at least one cause of action that is cognizable under the rule, and he must plead facts that support his claim. See Ark. R.Crim. P. 37.1(b); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Further, conclusory Inallegations that are unsupported by facts do net provide a basis for either an evidentiary hearing or postconviction relief. Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999).
Here, the record of Wood’s case conclusively shows that Wood is entitled to no relief. Thus, we conclude that the circuit court’s written findings complied with Rule 37.3 and we hold that the allegations in Wood’s petition are such that it is conclusive on the face of the petition that no relief is warranted. As discussed at length above, Wood’s arguments are unsupported by.the record, not cognizable in a Rule 37 proceeding, conclusory or fail to allege that, but for the alleged errors, he would not have entered his guilty plea and would have insisted on going to trial. Therefore, having considered all of Wood’s arguments and having carefully reviewed the record in its entirety, we cannot say that the circuit court clearly erred in denying Wood’s petition without an evidentiary hearing.
Affirmed.
Hart, J., dissents.
. On July 1, 2014, Wood tendered a motion for extension of time to file a reply brief and supplement the abstract and/or addendum pursuant to Ark. Sup. Ct. R. 4-7. On July 23, 2014, the State responded. On July 30; 2015, Wood filed his reply brief and supplemental addendum. We grant Wood's motion for extension of time to file a reply brief and deny his motion to supplement the abstract and/or record.
On July 21, 2014, Wood filed a motion to demonstrate new evidence. The motion is denied.
. The seven separate grounds are as follows:
1. The circuit court erred in denying Wood’s Rule 37.1 petition because defense counsel was ineffective when she did not object to the charging information on the ground that Wood was charged with a violating a statute that was not in effect when he committed the offense.
2. The circuit court erred in denying Wood’s Rule 37.1 petition because defense counsel was ineffective when she failed to request a mental evaluation when she knew or should have been aware Wood suffered from PTSD. Wood also argues that the circuit court erred in denying his claims regarding his mental health.
3. The circuit court erred in denying Wood’s Rule 37.1 petition because the prosecutor engaged in prosecutorial misconduct in violation of his due-process rights.
4. The circuit court erred in denying Wood’s Rule 37.1 petition because the sentencing order is facially invalid.
5. The circuit court erred in denying Wood’s Rule 37.1 petition because he is not receiving jail-time credit Wood claims he is entitled to.
6. The circuit court erred in denying Wood's Rule 37.1 petition because his counsel did not conduct an adequate investigation.
7. Wood is entitled to postconviction relief because he was coerced into waiving his right on appeal, and Wood was prej- . udiced. | [
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RHONDA K. WOOD, Associate Justice
|, This appeal stems from an order of the circuit court, entered after an Extended Juvenile Jurisdiction review hearing, sentencing the appellant, Z.L., to a term of twenty-five years in 'the Arkansas Department of Correction. Z.L.' contends that the circuit court lacked jurisdiction to impose .an adult sentence because he had reached the age of twenty-one. before the hearing was scheduled and conducted, and before the sentencing order was entered. Because we agree that the circuit court lacked jurisdiction, we reverse and dismiss the case.
In March 2008, one day after his fifteenth birthday, Z.L. was charged as an adult with rape. On August 5, 2009, the criminal casé was transferred to the juvenile division of the' circuit court as an Extended Juvenile Jurisdiction (“EJJ”) case pursuant to Arkansas Code Annotated section 9 — 27—318(i>- (Repl. 2009) and assigned a juvenile case number. On | ¡August 5, 2009, Z.L. stipulated to an EJJ delinquency finding. An EJJ adjudication order was entered, and he was committed to the Arkansas Division of Youth Services (“DYS”).
Four years later, in November 2013, DYS filed a petition to release Z.L. from the DYS commitment as he had “benefited from the services provided and ‘[was] not reasonably expected ‘to benefit’ further from continuation of the’ commitment.” However, no hearing was held on DYS’s petition, and the court did not enter an order to release Z.L. Nevertheless, on or around his twenty-first birthday in March 2014, DYS released Z.L.
Then, in March 2014, several days after Z.L. turned twenty-one, his case was set for a hearing in the circuit court to consider imposition of an adult ■ sentence. In response, Z.L. filed a motion to dismiss for lack of jurisdiction.' The circuit court denied Z.L.’s motion and ultimately proceeded to hear testimony as to whether an adult sentence should be imposed. On September 2, 2014, the circuit court entered an order in the juvenile division finding that the case should be transferred to the criminal division and assigned the criminal case number. A second juvenile order was entered finding that an adult sentence was appropriate and sentencing Z.L. to twenty-five years in the Arkansas Department of Correction. That same day, a sentencing order was entered in Z.L.’s criminal case also sentencing him to twenty-five years in the Arkansas Department of Correction.
The only issue on appeal is whether the circuit court had jurisdiction that enabled it to'imposé an adult sentence on Z.L. It is well-settled that jurisdiction is a court’s authority |ato hear and decide a particular type' of case. Tripcony v. Ark School for the Deaf, 2012 Ark. 188, 403 S.W.3d 559. A court lacks jurisdiction if it cannot hear a matter "under any circumstances and is wholly incompetent to grant the relief sought. - Id. A court obtains jurisdiction under the Arkansas Constitution or by means of constitutionally, authorized statutes or court rules. Id. Where the issue of jurisdiction requires interpretation of a statute or constitutional provision, this court’s review is de novo. Id.
Pursuant to Arkansas Code Annotated section 9-27-306(a)(1)(A)(i) (Repl. 2009), the juvenile division of circuit courts has exclusive, original jurisdiction of juve nile delinquents. Subsection (a)(1) of 9-27-306 identifies the juvenile proceedings over which the circuit court has jurisdiction. These include, but are not limited to, proceedings in EJJ cases. Ark.Code Ann. § 9-27-306(a)(l)(G)(stating “[t]he circuit court shall have exclusive original jurisdiction of and shall be the sole court for ... [proceedings for which a juvenile is alleged to be an extended juvenile jurisdiction offender under § 9-27-501 et seq.”). Subsection (a)(2) of 9-27-306 sets an age parameter on all the juvenile proceedings. It states, “a juvenile shall not under any circumstances remain under the court’s jurisdiction past twenty-one years of age.” Ark.Code Ann. § 9-27-306(a)(2). We interpret this to mean that the circuit court’s juvenile jurisdiction ceases on the juvenile’s twenty-first birthday.
Furthermore, pursuant to Arkansas Code Annotated section 9-27-501(a)(Repl. 2009), a juvenile delinquent between the ages of thirteen and seventeen who has committed a particularly'egregious crime may be designated as an EJJ offender. Arkansas Code Annotated section 9-27-507 (Repl. 2009) gives circuit courts the authority to conduct a review hearing to modify a juvenile disposition order or to impose an adult sentence. A preview hearing can be requested by the State, DYS, or the juvenile. Ark.Code Ann., § 9-27-507(a),(c)(1)(A),(c)(2)(A). However, if no hearing has been conducted at least six months before the juvenile’s twenty-first birthday, the court shall set a hearing “to determine whether to release the juvenile, amend or add any juvenile disposition, or impose an adult sentence.” Ark:Code Ann. § 9-27-507(e)(l).
Z.L. argues that the circuit court lost jurisdiction to impose an adult sentence after he turned twenty-one years old. We agree. Before he turned twenty-one, Z.L. was under juvenile jurisdiction as an EJJ offender. However, the juvenile division lost jurisdiction over Z.L. once he turned twenty-one. See Ark.Code Ann. § 9-27-306(a)(2). Thus, on September 2, 2014, the circuit court lacked jurisdiction to issue the orders in the juvenile case transferring Z.L. to the criminal division and sentencing him to twenty-five years in the Arkansas Department of Correction. Likewise, without a valid order transferring jurisdiction from the juvenile division to the criminal division, the criminal division of the circuit court lacked jurisdiction to enter the sentencing order.
The State incorrectly interprets Arkansas Code Annotated section 9-27-507(e)(l) (Repl. 2009) as requiring the court to hold a review hearing, regardless of the juvenile’s age. While the statute instructs the circuit court to hold a hearing “to determine whether to release the juvenile, amend or add juvenile disposition, or impose an adult sentence,” it clearly requires that it do so before the juvenile turns twenty-one. Ark.Code Ann. § 9-37-507(e)(1). Nothing in Arkansas Codé Annotated section 9-27-507 contemplates that the circuit court will retain jurisdiction or transfer the juvenile to the criminal division for adult sentencing after the juvenile’s twenty-first birthday. Accordingly, we hold that the circuit |,-.court lacked jurisdiction to conduct an EJJ review hearing and impose an adult" sentence on Z.L.
Reversed and dismissed.
. The order stated the juvenile pled "guilty” to tlie charge of rape, a class Y felony, however that is technically inaccurate in a juvenile delinquency adjudication, but rather it is a stipulation to a finding of delinquency under EJJ. See Arkansas Code Annotated § 9-27-327(a), (d) (Repl. 2009). | [
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RITA W. GRUBER, Judge
|,Appellant, Israel Todd Watson, was convicted by a jury of ten counts of rape for engaging in deviate sexual activity with a ten-year-old girl, AS. All of appellant’s points on appeal concern the testimony of a woman who claimed that appellant had raped her when she was a child. The court admitted the testimony over appellant’s objection, finding that it fit within the pedophile exception to Arkansas Rule of Evidence 404(b). Appellant also objected to a statement in the testimony that he claimed went to “the ultimate question” in the case. We affirm appellant’s convictions and hold that the trial court did not abuse its discretion in admitting the witness’s testimony.
The victim in this case, AS, testified that appellant was a friend of her mother and stepfather and that they sang in a praise band together. Appellant volunteered to babysit for 12her after school when she was in fifth grade. AS said that appellant was a “nice guy” and that she had trusted him. She called appellant “Uncle Todd.” She said that he began touching her on top of her clothes and then progressed to having her perform oral sex on him. He also penetrated her vaginally with his penis and his fingers. She testified that most of the crimes took place at her house and that he had stopped when her mom had come home from work. AS also testified that he drove her to a friend’s apartment on one occasion, where he retrieved condoms from a drawer and then penetrated her vaginally. He also attempted to penetrate her anally while they were at appellant’s house, but AS said that he stopped when appellant’s wife came home. The abuse stopped after AS told a friend at school, who informed their teacher. The teacher asked AS about it, and AS told her what had been happening.
The trial court held a pre-trial- hearing to determine whether to allow the State to introduce the testimony of a twenty-four-year-old woman, Whitley Currence, who alleged that she had been raped by appellant when she was fifteen. Ms. Currence testified that' she was born on April 3, 1989. She testified that'she and appellant worked for her mother at a nursing home in Ashdown that was owned' by her mother’s parents. She said that appellant had always been friendly and nice to her and that she had trusted him. One day her mother sent her and appellant to retrieve an item from a rent house that was used for storage. She stated that-she did not have a driver’s license and that appellant had driven. When they got to the house, he asked her. whether she would tell anyone if he ever touched her. She was unsure what he meant, but told him “no.” He subsequently pushed her into the corner of a ladoset, pulled her pants down, and put his penis into her vaginá. She said that she had repeatedly asked him to stop. Before they left the house, appellant told her, “If- you ever f|! ***** tell anybody ... I’ll kill you, bitch.” She did not tell anyone until about six months later, when she told her father, who filed a report with the police on March 17, 2005.
The court allowed the testimony, and Ms. Currence testified similarly at trial to her pre-trial hearing. She also testified that she did not know AS or her parents and that she had not had any contact with appellant since the incident. When asked why she was testifying, she said because a detective had contacted her father and because she had three daughters and “to know that he did that to a little girl I could never sit back.” Appellant objected to this statement, arguing that it was a determination on the final or ultimate question regarding whether he did or did not commit- the offenses in this case. The trial court overruled the objection, reasoning that the witness was merely giving an explanation regarding why she was testifying. • • :
I. ¿(¼(⅞) Testimony
For his first point on appeal, appellant contends that the trial court abused its discretion by allowing Ms. Currence’s testimony in violation of Rule 404(b) of the Arkansas Rules of Evidence. ’Rule 404(b) provides 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.
Ark. R. Evid. 404(b) (2015). The general rule excludes evidence of a defendant’s prior bad acts, but the second; sentence provides an exemplary, but not exhaustive, list of exceptions to 14that rule. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006) (citing White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)).
In case law, our supreme' court has also 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. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008). 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 to show a proclivity for a specific act with a person or class of persons with whom the defendant has had an intimate relationship. Craigg v. State, 2012 Ark. 387, at ¶ 7, 424 S.W.3d 264, 268. The rationale for this exception is that such evidence helps to prove -the depraved sexual instinct of the accused. Id. There are two requirements for this.exception to apply: there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct, and there must be an “intimate relationship” between the defendant and the victim of the prior act. Allen, 374 Ark. at 317, 287 S.W.3d at 585.
We will not reverse a trial court’s decision whether to admit or reject evidence under Rule 404(b) absent a manifest abuse of discretion. Craigg, 2012 Ark. 387, at ¶ 8, 424 S.W.3d at 268. Abuse of discretion is a high threshold that does not simply require error in the trial judge’s decision, but requires that the trial judge acted improvidently, thoughtlessly, ■ or without due consideration. Id.
In challenging the court’s admission of the testimony in this case, appellant first contends that it was unclear whether Ms. Currence was a minor at the time of the alleged |fievent because she gave conflicting testimony regarding whether she was fifteen or sixteen. He also argues that it was not clear that appellant was in a position of authority over Ms. Currence because it was her family who owned the nursing home. Finally, ■■'appellant claims that the only similarity between the victim in this cáse and Ms. Currence was that both alleged that he had raped them.
First, Ms. Currencé' testified that she was fifteen or sixteen at the time of the event; that she did not have a driver’s license at the time; that her birthday was April 3, 1989; and that her father filed a report on March 17,, 2005. There was no evidence presented that she was not a minor. Furthermore, an intimate relationship includes an acquaintance or friendship that is familiar, near, or confidential. Craigg, 2012 Ark. 387, at ¶ 10-11, 424 S.W.3d at 270. Ms. Currence testified that she worked with appellant, that she trusted him, and that, on the day of the incident, he was driving her on a work errand that they had been tasked with performing together by Ms. Currence’s mother. She was a teenager, and he was an adult. Finally, both victims were minors, were entrusted by their mothers into his care,, and were raped in homes that were unoccupied. There is nothing in the record to show that the trial court acted improvidently, thoughtlessly, or without due consideration in admitting Ms. Cu,r-rence’s testimony under the pedophile exr ception to Rule 404(b), and we hold that the trial court did not abuse its discretion.
II. Fifth Amendment Right
Next, appellant contends that the trial court’s decision to admit Ms. Cur-rence’s testimony compelled his testimony in violation of his Fifth Amendment right to remain silent. | ^Specifically, he argues that, because her testimony was of the “he said, she said” type, his only way to refute it was to testify. But he did not testify; nor has he claimed that he was compelled to provide incriminating evidence at trial. We note that testimony in a rape case is often of this type, and appellant cites no legal authority for his argument that “he said/she said” evidence violates a defendant’s Fifth Amendment right. We do not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Armstrong v. State, 366 Ark. 105, 109, 238 S.W.3d 627, 631 (2006).
III. Ultimate-Question Testimony
Finally, appellant argues that the trial court abused its discretion in allowing Ms. Currence’s testimony on what he argues was the “ultimate question.” He claims that the objectionable statement amounted to the witness’s opinion that appellant committed the crimes for which he was charged. The allegedly objectionable testimony occurred in response to the State’s question regarding why she was “here today[.]” Ms. Currence responded, “Because I have three daughters and to know that he did that to that little girl I could never sit back[.]” Appellant objected to the testimony, arguing that it touched on the “final, ultimate determination” in the case, which was whether he raped AS. The State’s response was that Ms. Currence was merely testifying regarding her understanding and not regarding the truth of the victim’s allegation. Ms. Currence had earlier testified that she did not know AS or her parents, and she later testified that she had no information about this case other than that it was an alleged rape case. To support his- argument, appellant cites our supreme court’s opinion in Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989), in which the court held that it was 17error to allow an expert witness to testify that the victim was telling the truth. We do not find Logan persuasive in this case. The witness here was not an expert and was not asked whether she believed AS was being truthful. Moreover, she testified that she did not know AS and that she had no information about the case other than that it was an alleged rape. The trial court did not abuse its discretion in allowing this testimony.
Affirmed.
Hixson and Brown, JJ., agree.
. This appeal is before us for the second time after we remanded to settle and supplement the record. Watson v. State, 2015 Ark. App. 363, 2015 WL 3507636.
. Appellant was born on February 4, 1976. | [
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Robert L. Brown, Justice.
Appellants Rick Taylor and Joyce Taylor appeal from a $40,000 judgment entered against them relating to a lawnmower injury sustained by appellee Jackie Gill. The Taylors raise several arguments for reversal, one of which is the lack of an agency relationship between them and the operator of the lawnmower, Kenny Willis. We agree with the Taylors that Willis was not acting as their agent when the injury occurred, and we reverse the judgment as it pertains to them.
Kenny Willis and the Taylors lived in the same neighborhood in Stuttgart and were friends who would, on occasion, assist each other in meeting various needs. For example, Rick Taylor would help Willis with mechanical work on his truck, while Willis would mow the Taylors’ yard because the Taylors did not own a lawnmower. Other neighbors, including Jackie Gill, would do the same. No payment was made for these services, and Willis was not paid for the mowing involved in this case.
On April 16, 1994, a day when Rick Taylor was out of town, Willis began mowing the Taylors’ yard. He was neither asked nor told to do so but was merely mowing the yard as a favor to the Taylors. Both Rick and Joyce Taylor later testified at trial that they did not know Willis would be mowing their yard on that day. Although neither of the Taylors was home when Willis commenced his task, Joyce Taylor returned from work while he was cutting the grass in her yard. She noticed that Willis was doing this but did not ask him to stop, although she acknowledged at trial that she could have done so. While Willis was mowing in a ditch on the Taylors’ property, the lawnmower hit a rock or piece of gravel which shot out from the side of the lawnmower, soared some 20 feet, and struck Jackie Gill, who was standing on the other side of a pickup truck, in the eye. Gill lost partial use of his eye.
Gill filed a complaint against Kenny Willis and the Taylors and sought damages for the personal injury he sustained as a result of Willis’s alleged negligence. The complaint asserted that Willis, acting as the Taylors’ agent, operated the lawnmower unsafely in an area where gravel and rocks were located without first determining whether it could be done without causing injury to Gill.
At the ensuing trial, the Taylors moved for a directed verdict at the close of Gill’s evidence and urged, among other things, the lack of substantial evidence to support an agency relationship. The directed-verdict motion was denied. The Taylors put on no proof, and the circuit court submitted the case to the jury on interrogatories. The jury found that Willis was 80% at fault, while Gill was 20% at fault. The jury assessed Gill’s damages at $50,000 and found that an agency relationship existed between Willis and the Taylors. The court, as a result of the verdict, reduced the $50,000 award due to Gill’s measure of fault and entered a $40,000 joint and several judgment against the Taylors and Willis.
In Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994), we set forth the principles of agency law followed in this state:
The burden of proving an agency relationship lies with the party asserting its existence. B.J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979). This court has used different definitions of agency that were appropriate for the particular cases, but each of them includes the element of control by the principal. In Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985) and Campbell v. [Bastian], 236 Ark. 205, 365 S.W.2d [249] (196[3]), we adopted the definition of agency contained in the Restatement (Second) of Agency. We said the two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. In Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 427 S.W.2d 539 (1968), we examined the Restatement definition together with a quote from 2 Am. Jur. 13, Agency § 2 and concluded that the essential elements for a showing of the agency relationship were authorization and control. Id. at 855, 427 S.W.2d at 541-42.
Pledger, 316 Ark. at 200, 871 S.W.2d at 392.
Prior to the Troll Book Clubs case, this court observed that a gratuitous undertaking could fall under the umbrella of an agency arrangement:
An agency may be defined as a contract, either express or implied, upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it.
Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 855, 427 S.W.2d 539, 541-42 (1968) (quoting 2 Am. Jur. 2d § 2, at 13) (emphasis added). See also Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963).
Recendy, we cited the Restatement (Second) of Agency § 221, cmt. c (1957), to the effect that it is only necessary that there be submission by the one giving the service to the direction and control of the one receiving it as to the manner of performance. See Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996). This principle of law applies not only to a master-servant arrangement but to principal-agent relationships as well.
Our standard of review in determining whether the trial court erred in denying a motion for a directed verdict is whether the verdict of the jury is supported by substantial evidence. Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). Substantial evidence is that evidence which is beyond mere suspicion or conjecture and which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion of the matter one way or another. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992). In our review, we will only consider evidence favorable to the appellee together with all its reasonable inferences. Anslemo v. Tuck, supra; Muskogee Bridge Co. v. Stansell, supra.
Thus, focusing on the evidence most favorable to Gill, it is clear that the Taylors, who did not own a lawnmower, were benefited by the services provided by Willis. Furthermore, they did not reject Willis’s work on prior occasions; nor did they do so in this case despite the fact that Joyce Taylor returned home while he was cutting the grass and had the opportunity and authority to stop the work as the homeowner. Based on these facts, and the inference that Rick Taylor and Willis were exchanging favors, Gill urges that there is substantial evidence that Willis was acting as the Taylors’ agent when the injury occurred.
The Taylors concede that under Arkansas law an agency may be implied from the conduct of the parties even absent an express agreement. See Hinson v. Culberson-Stowers Chevrolet, supra. They further concede that they were receiving a benefit from the mowing services provided by Willis. But they maintain that there was a dearth of proof on (1) mutual consent to the agency relationship, even by implication; (2) the ability of the Taylors to control the conduct of Kenny Willis; and (3) Willis’s submission to that control. We agree.
Although no evidence was presented that Willis was asked to cut the Taylors’ grass on this particular day, a jury could reasonably conclude, based on the prior conduct of the parties, that Willis had authority to do this work. However, as our Model Jury Instruction points out, an agent is “a person who, by agreement with another called the principal, acts for the principal and is subject to his control.” AMI 3d 701 (emphasis added). See also Crouch v. Twin City Transit, Inc., 245 Ark. 778, 434 S.W.2d 816 (1968); Campbell v. Bastían, supra. The only evidence tending to establish a right of control in the Taylors over the work performed by Willis comes from the following colloquy between Gill’s counsel and Joyce Taylor on direct examination:
GILL’S COUNSEL: If Mr. Willis had been doing something that you did not approve of when you drove up on April sixteenth in mowing your yard, would you have told him to do it differently?
JOYCE TAYLOR: Yes, sir.
GILL’S COUNSEL: Being your yard, you had control?
JOYCE TAYLOR: Yes, sir.
We view this colloquy in the context in which the service was performed — as an unsolicited favor to the Taylors. Giving this evidence its most probative value, it proves only that the Taylors could have prevented Willis from mowing because of their status as property owners. For example, had Joyce Taylor observed Kenny Willis mowing in an off-limits area like a flower bed, or at a time when the lawnmower’s noise was distracting, she could have stopped him. That authority, however, does not meet the requirement, as noted in Evans v. White, supra, and Campbell v. Bastian, supra, of proving an express or implied agreement between Willis and the Taylors that Willis was subjecting himself to the control of the Taylors with respect to the methods employed in mowing the yard. Moreover, apart from the fact that Willis was working on the Taylors’ property, there was no evidence presented at trial of the intent or authority of the Taylors to control the precise manner in which Willis mowed the lawn. Again, the proof presented tended to prove only that the Taylors could force Willis to refrain from certain conduct because of their status as property owners, a condition that would apply to any third party entering the land of another to perform a service.
We think the evidence presented in this case does no more than relegate Willis to a status akin to that of an independent contractor, which we distinguished from an agent in Howard v. Dallas Morning News, Inc., supra:
On the other hand, we have defined an independent contractor as one who, exercising an independent employment, contracts to do work according to his own methods and without being subject to the control of the employer, except as to the results of the work, and have held that the right to control and not the actual control determines whether one is a servant or an independent contractor. Wilson v. Davison, 197 Ark. 99, 122 S.W.2d 539 (1938).
Howard, 324 Ark. at 100, 918 S.W.2d at 183.
In sum, we see a marked difference between the authority of Joyce Taylor to stop Willis from doing the work altogether, which she most certainly could have done, and her authority to control the exact manner in which Willis went about his task. We observe no proof that the Taylors intended to micromanage, or could have micromanaged, how Willis actually accomplished his work. Nor do we glean from the record that Willis would have subjected himself to such control in performing this favor.
Because there was no substantial evidence regarding the existence of the agency relationship, the judgment of the trial court must be reversed as to the Taylors. We remand for an order consistent with this opinion.
Reversed and remanded.
. Though the style of the case includes Kenny Willis as an appellant, he did not appeal. | [
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Robert H. Dudley, Justice.
On April 16, 1993, the Arkansas State Highway and Transportation Department notified Milton and Doug Kidder that their large, four-sided, rotating billboard located next to State Highway 22 in Fort Smith could no longer rotate or move in any way. The Kidders responded that the billboard had been rotating since 1965, and its rotation was protected under a “grandfather clause.” They requested a hearing. The hearing officer ruled that a rotating billboard was in violation of the statutes and regulations governing the maintenance of outdoor, off-premise advertising devices and ordered the Kidders to stop rotating the billboard. The Kidders appealed to circuit court on August 27, 1993, and, the same day, the circuit court stayed the ruling of the hearing officer. On November 16, 1995, the circuit court ruled that part of the hearing officer’s findings were not supported by substantial evidence and that the hearing officer’s conclusion of law was arbitrary, capricious, and erroneous. The Department appealed to this court. We hold that the hearing officer’s findings of fact were supported by substantial evidence and that his conclusion of law was neither arbitrary nor erroneous. We reverse the judgment of the circuit court and remand for orders consistent with this opinion.
I. Standard of Review
Section 25-15-212 of the Arkansas Code Annotated provides that a person who considers himself injured by a final act of an agency is entitled to a review of the action by a circuit court. Ark. Code Ann. § 25-15-212(a) & (b) (Repl. 1996). Section 25-15-212(h), in material part, provides:
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-12-215((h) (Repl. 1996). The rules governing judicial review of decisions of administrative agencies by both the circuit and appellate courts are the same. Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995). In Franklin, we set out the standard of review as follows:
Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it.
Id. at 472, 892 S.W.2d at 264 (citations omitted). The opinion also sets out the manner in which this court determines whether a decision is supported by substantial evidence:
To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When reviewing the evidence, we give it its strongest probative force in favor of the agency. Appellant’s burden, then, in order to establish an absence of substantial evidence, is to show that the proof before the Department was so nearly undisputed that fair-minded persons could not reach its conclusion. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that was made.
Id. at 474-75, 892 S.W.2d at 266 (citations omitted).
II.
A. Findings of Fact
The Department’s first point on appeal is that the circuit court erred in ruling that there was no substantial evidence to support the hearing officer’s findings of fact. The point is well taken. The circuit court ruled that the hearing officer’s “determination that prior to the effective date of the [Arkansas State Highway Beautification] Act the advertising device had been an on-premise device and therefore was not subject to the requirements of the Act, is not supported by substantial evidence in the record.” The hearing officer simply did not make a finding of fact that the billboard was an on-premises device before the effective date of the State Highway Beautification Act, Ark. Code Ann. §§ 27-74-101 — 502 (Repl. 1994). Rather, the hearing officer, on practically undisputed facts, found moot the Kidders’ contention that the billboard was nonconforming and pre-existed the State Highway Beautification Act because it was undisputed that the billboard rotates and no attempt was made to obtain a permit under a grandfather clause. Moreover, a review of all of the evidence introduced at the administrative hearing reveals that all of the pertinent findings of facts were undisputed.
B. Conclusion of Law
The Department’s next point on appeal is that the circuit court erred in ruling that the hearing officer arbitrarily and erroneously concluded that the billboard was subject to the requirements of state and federal acts. This point is also well taken.
The material part of the hearing officer’s ruling is as follows:
It’s clear from a reading of the Federal law and State Regulations that many aspects of the criteria for operating outdoor advertising devices on Primary Highways in the State of Arkansas applies to both conforming and nonconforming devices alike. Devices violating those expressly prohibited aspects cannot be operated and maintained in conformance with the law. Federal law prohibits the maintenance of devices which move and the Regulations prohibit devices with more than two faces and more than one face visible from the main traveled way of the highway. As a Conclusion of Law the continued operation and maintenance of this device as a four faced rotating sign violates the provisions of the permit approval, the Regulations, and State and Federal law.
The Arkansas Highway Beautification Act, Ark. Code Ann. §§ 27-74-101 — 502 (Repl. 1994), was enacted in 1967 to bring Arkansas into conformance with the Federal Highway Beautification Act and, in part, to avoid losing substantial amounts in federal-aid highway funds. Preamble to Act 640 of 1967. The Act authorizes the Arkansas State Highway Commission to enter into agreements with the Secretary of Transportation, as provided in Title 23 of the United States Code. Ark. Code Ann. § 27-74-209.
Pursuant to the Act, the Commission entered into an agreement with the Secretary of Transportation and promulgated rules and regulations for the erection of outdoor advertising signs. See Regulations for Control of Outdoor Advertising on Arkansas Highways. The scope of the agreement in the regulations provides that the determinations set forth in the agreement do not apply to “outdoor advertising signs legally erected and maintained, in zoned and unzoned commercial and industrial areas established by this agreement, on FAP and FAI Highways prior to the date of enactment of this agreement.” Regulations for Control of Outdoor Advertising, II., p. 7 (emphasis added).
The federal regulations provide the following regarding grandfather clauses:
(c) Grandfather clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.
23 C.F.R. § 750.707(c) (1996). Section 750.707(d) provides in part that for a nonconforming sign to be continued and maintained, it “must have been lawful on the effective date of the State law or regulations, and must continue to be lawfully maintained.” Section 750.303(e) defines nonconforming signs as:
One which was lawfully erected, but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State law or State regulations due to changed conditions. Illegally erected or maintained signs are not nonconforming signs.
The state regulations specifically require permits for outdoor, off-premise advertising devices such as the one in issue, including devices already in existence, as of October 1, 1972. Revised Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, Section 2, p. 21. The state regulations provide two different types of permits, Class A permits for conforming devices and Class B permits for existing nonconforming devices. Revised Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, Section 3, p. 21. Permits are not required for on-premises devices. Section 6, p. 23.
Under the foregoing state and federal regulations, in order for the Kidders to continue to use the billboard in a nonconforming manner, it would have been necessary for them to maintain it lawfully. They failed to do this because they did not obtain a permit on or after October 1, 1972, as the regulations required. They did obtain a permit in 1980, but it was a Class A conforming permit with restrictions on it, one of which was that the sign not rotate or simulate movement. They did not comply with the restrictions; therefore, the sign was unlawfully maintained.
Under the federal regulations, the agreements between states and the Secretary of Transportation may contain grandfather clauses that apply to devices that do not comply with the requirements for size, lighting, and spacing, but, in the present case, the issue was not size, fighting, or spacing; rather, it was that the billboard had four sides and rotated. Additionally, the agreement between the State and the Secretary of Transportation provides in pertinent part that a sign structure may consist of two facings as long as only one facing is visible from the approaching traveled way. Each facing may contain two signs; a sign structure may not contain more than four signs. Regulations for Control of Outdoor Advertising, III. B., p. 8. The federal regulations provide that “[n]o sign may be permitted which has any animated or moving parts.” 23 C.ER. § 750.106(b)(6) (1996) (emphasis added). The undisputed evidence supports the conclusion that the advertising device in question violated the state regulations in that it had more than two faces, with more than one face being visible to the approaching traveled way. In sum, the conclusion of the hearing officer was not arbitrary and not in error.
The hearing officer’s conclusion was correct for an additional reason. The Kidders finally applied for and obtained a permit for the billboard in 1980, but it was a Class A conforming permit that provided the sign could not rotate. It is settled that one cannot accept the benefits of a permit and then challenge the conditions of the permit. See Arkansas State Highway Comm’n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964). In Hightower, this court said: “The plaintiff could not, after having applied for and accepted from the building inspector a permit to build a wall twelve inches thick, build one eight inches thick, and, when ordered to show cause why the permit granted should not be revoked or cancelled, for that reason plead that the provisions of the building ordinance requiring him to agree to build in accordance with the plans and specifications were illegal and void and not binding upon him.” Id. at 575-76, 383 S.W.2d at 283 (quoting James H. Dailey Estate v. City of Lincoln, 107 Neb. 151, 159, 185 N.W 332, 335 (1921)).
Reversed and remanded for proceedings consistent with this opinion.
JESSON, C.J., not participating. | [
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Donald L. CORBIN, Justice.
Appellant Johnny Paul Dodson appeals the judgment of conviction of the Monroe County Circuit Court sentencing him to a term of fifty years in the Arkansas Department of Correction for the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana). Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). In support of his appeal, Appellant asserts that the trial court erred as follows: (1) In denying his motion for new trial on the grounds that trial counsel was ineffective; (2) in allowing the prosecution to enter into evidence a copy of the State Crime Laboratory report concerning the drug analysis; and (3) in sentencing Appellant to a term of ten years for simple possession of marijuana. We affirm.
Appellant was arrested during a traffic stop in Brinkley, Arkansas, driving a car that belonged to his girlfriend. Appellant was accompanied by two other passengers: James Martin and Ricky Bennett. During a search of the car and its occupants, officers recovered a 10 mm gun and a bag containing what was believed to be crystal methamphetamine and marijuana. In addition, the officers recovered $6,000.00 cash from Appellant’s person.
Appellant was charged by information with three felony offenses, namely possession of methamphetamine with the intent to deliver the substance, Class Y felony; possession of marijuana, Class C felony; and being a felon in possession of a firearm, Class D felony. Appellant was also charged with two traffic violations. Appellant was tried before a jury and was convicted on all counts with the exception of the firearm charge. Judgment was entered by the trial court, sentencing Appellant to a term of imprisonment for fifty years. It is from that judgment appeal is taken.
I. Ineffective Assistance of Counsel
Appellant argues that his trial counsel was ineffective due to a material conflict of interest involving his representation of all three of the men arrested during the traffic stop and due to his failure to move to sever the offense of felon in possession of a firearm. We do not reach the merits of his arguments on appeal, as the facts surrounding each allegation of ineffectiveness were not fully developed in the trial court.
It is evident from the abstract of the record that subsequent to the trial court’s entry of the judgment and commitment order on November 8, 1995, Appellant retained new counsel and filed a motion for new trial on December 7, 1995, alleging that he had been denied effective assistance of counsel. In that motion, Appellant submitted eight grounds upon which his trial counsel was ineffective; Appellant argues only two of those grounds on appeal. The trial court did not conduct a hearing on the motion for new trial, nor did the court actually rule on the motion. Appellant asserts that the motion for new trial was “deemed denied” pursuant to Rule 4(c) of the Arkansas Rules of Appellate Procedure.
We are thus presented with two distinct but related issues: (1) Whether we may properly consider on direct appeal Appellant’s claim of trial counsel’s ineffectiveness, which amounts to a collateral attack on the judgment pursuant to A.R.Cr.P. Rule 37, and (2) whether it is sufficient for purposes of our review of such a claim that the motion for new trial was “deemed denied” by the trial court.
This court has recognized that, although Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, the issue may be raised by a defendant on direct appeal provided it is first raised during trial or in a motion for new trial. See A.R.Cr.P. Rule 37; Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). Evidence of the allegation must, however, be contained in the record and the trial court must have been given the opportunity to rule on the issue. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). Additionally, this court has indicated that it will not consider a claim of counsel’s ineffectiveness unless the facts surrounding the claim were fully developed either during the trial or during other hearings conducted by the trial court. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). The rationale behind this rule of law is that an evidentiary hearing and finding as to the competency of an appellant’s counsel by the trial court better enables the appellate court on review to examine in detail the sufficiency of the representation. Reed v. State, 323 Ark. 28, 912 S.W.2d 929 (1996); Hilliard, 259 Ark. 81, 531 S.W.2d 463. The trial court is in a better position to assess the quality of legal representation than we are on appeal. Id.
In Missildine, 314 Ark. 500, 863 S.W.2d 813, this court observed that the reason we do not ordinarily review on direct appeal a charge of ineffectiveness is because the facts relevant to that issue have not been developed below. This court held that “when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues.” Missildine, 314 Ark. at 507, 863 S.W.2d at 818 (emphasis added) (citing Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986)). In other words, in the interest of judicial economy, this court will review claims of counsel’s ineffectiveness on direct appeal provided that the allegation is raised before the trial court (i.e., in a motion for new trial) and that the facts and circumstances surrounding the claim have been fully developed.
Given the aforementioned specific requirements established by our prior decisions concerning direct appellate review of claims of ineffectiveness, we must now assess whether the “deemed” denial of Appellant’s motion for new trial is an appealable order sufficient for our review of his claim. Rule 4(c) of the Rules of Appellate Procedure — Civil provides:
If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion mil be deemed denied as of the 30th day. [Emphasis added.]
This court has previously held that Rule 4(c) applies in criminal cases. Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993). However, the decisions in which we have addressed the rule’s application in criminal cases have thus far dealt only with the issue of timeliness of appeal. See, e.g., Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Giacona, 311 Ark. 664, 846 S.W.2d 185.
In 1996 we adopted the separate Rules of Appellate Procedure — Criminal, which include a provision that certain posttrial motions may be “deemed denied” pursuant to Rule 4(c) for purposes of filing a timely notice of appeal. In re: In the Matter of the Adoption of Revised Rules of Appellate Procedure, 321 Ark. 663, 900 S.W.2d 560 (1995) (per curiam). Specifically, Ark. R. App. P.— Crim. 2(a)(3), which addresses the time and method of taking an appeal, provides that a notice of appeal shall be filed within thirty days from the date a posttrial motion under A.R.Cr.P. Rule 33.3, including a motion for new trial, is “deemed denied” pursuant to Ark. R. App. P. — Civ. 4(c). Since the adoption of that rule, we have yet to address the issue of whether such a “deemed denied” ruling is a sufficient order from which to appeal the denial of a motion for new trial based upon a claim of ineffectiveness.
A plain reading of Rule 2 demonstrates that the purpose of recognizing such “deemed denied” rulings on posttrial motions is to enable an appellant to know when he must file his notice of appeal of the judgment of conviction. We must therefore distinguish a ruling which is “deemed denied” for purposes of filing a timely notice of appeal from an appealable order of a posttrial claim of ineffectiveness. As the Reporter’s Notes to Rule 2 indicate, this rule applies in Rule 37 cases only as to appeals from the actual denial of the petition; the “deemed denied” provision of Rule 4(c) does not apply to Rule 37 petitions. Although this case does not involve a Rule 37 petition, it does involve a claim of trial counsel’s ineffectiveness. The reasons for the necessity of an actual ruling and fully developed facts are the same in both instances. It matters not what we call it; Appellant’s claim on appeal amounts to nothing more than a collateral attack on the judgment based on allegations of counsel’s ineffectiveness.
In the case at hand, we have not been provided with anything other than the bare allegations set out in Appellant’s motion for new trial. We have no evidence as to why trial counsel made the particular decisions which are challenged in this appeal. There has been no testimony from either Appellant or his trial counsel indicating whether there were discussions between them as to the way Appellant’s defense should or would proceed. Such information is necessary for us to conduct a meaningful review of the allegations. This is especially true in this case as there was discussion on the record below indicating that Appellant was aware that his trial counsel was not fully prepared to go to trial, but that Appellant nonetheless chose to proceed with the trial so that he could be released as soon as possible.
Based upon the above-recited case law, including our decisions interpreting Rule 4(c), and the plain meaning of Rule 2, we conclude that a “deemed denied” ruling on a posttrial motion for new trial is an insufficient order from which to raise on direct appeal a claim of ineffectiveness. Such a deemed ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the claim. As the trial court is in the best position to evaluate trial counsel’s performance and competency, an order reciting its findings is necessary to enable us to conduct a meaningful review of the claim. Because we have not been presented with any evidence on the allegation or any actual ruling of the trial court, we affirm as to Appellant’s first point.
We point out that nothing in this opinion should be construed as prohibiting Appellant from filing a proper petition for postcon-viction relief pursuant to A.R.Cr.P. Rule 37.
II. State Crime Laboratory Report
For his second point, Appellant argues that it was error for the trial court to allow the prosecution to introduce into evidence a copy of the forensic chemist’s report containing the analysis of the drugs recovered in this case. Appellant’s argument is twofold: (1) He was denied his constitutional right to confront and cross-examine the chemist who conducted the analysis, and (2) the report was not properly attested as provided in Ark. Code Ann. § 12-12-313 (Repl. 1995). We find no merit to either of Appellant’s arguments.
Section 12-12-313 provides:
(a) The records and reports of autopsies, evidence analysis, drug analysis, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the executive director or his assistants, associates, or deputies.
(b) Nothing in this section shall be deemed to abrogate a defendant’s right of cross-examination if notice of intention to cross-examination is given prior to the date of hearing or trial pursuant to the applicable rules of criminal procedure.
(c) The testimony of the appropriate analyst may be compelled by the issuance of a proper subpoena, in which case the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel.
(d)(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
(2) The defendant shall give at least ten (10) days notice prior to the proceedings that he requests the presence of the employee of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examination.
The purpose of this statute is to remove these reports from exclusion under the hearsay rule and make them admissible when certain requirements designed to establish their trustworthiness have been satisfied. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990).
Appellant’s abstract reflects that the charges against Appellant were filed on September 29, 1995, and that the trial was conducted on November 7-8, 1995. Appellant asserts that his trial counsel was not aware of the charges filed against him until the day before the trial. Appellant further asserts that his trial counsel was not notified of the prosecution’s intention to introduce the analysis report until the prosecution moved for its introduction at trial. It is Appellant’s contention on appeal that he did not waive his right to cross-examine the chemist, and that he should not have been held to the ten-day-notice requirement in section 12-12-313 because he was not aware that the prosecution would not call the chemist as a witness until that point during the trial when the prosecution offered the analysis report as evidence. Appellant does not assert that he had indicated this desire to cross-examine the chemist at anytime prior to his trial.
Appellant’s argument that he did not have time to comply with the ten-day-notice requirement is unpersuasive as we believe he knew or should have known that the prosecution would attempt to use the evidence against him either through the chemist’s testimony or through the report itself. We further find the argument unpersuasive as it is clear from the abstract of the record that Appellant was fully aware that his counsel had not had adequate opportunity to compile discovery or to attempt to negotiate a plea bargain. In fact, Appellant’s trial counsel made the court aware of his client’s desire to get on with the trial as soon as possible during a pretrial hearing. Appellant’s trial counsel stated:
We have no discovery in this case. That is not the fault of the State because the case was just filed. My client insists on going to trial, and believes that the faster he goes to trial, the faster he can be released. He has maintained his innocence and it is his belief and desire to go ahead and have a trial so that he may be acquitted and discharged. Even with the risk of his attorney being ignorant of what the State has in this matter and what their level of proof and preparedness is.
It is clear from counsel’s remarks that it was Appellant’s conscious desire to proceed to trial even though his attorney may not have been fully prepared to defend him. Appellant cannot now assert that he was not prepared to defend against the admission of the chemist’s report without being allowed to cross-examine the chemist when it was Appellant’s own decision to rush through with the trial.
This court has previously concluded that it is the state’s burden to produce the chemist or to obtain a continuance when the state has caused the defendant to be unable to comply with the statute’s ten-day-notice prerequisite. Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993). Nonetheless, the defendant is at least required to inform the state that he desires to have the chemist present at trial so the state would realize that it must fulfill its burden to produce the witness. Id. Moreover, an appellant must also demonstrate that he has been prejudiced, beyond the bare assertion of the constitutional right to confront witnesses, by the denial of cross-examination or that such a request would have availed him anything. Id.
Appellant relies heavily on the decision in Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992), in which the court of appeals concluded that “[w]hile the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply.” Id. at 57, 842 S.W.2d at 446. Appellant’s reliance on that holding is misplaced, however, as the facts of that case were such that the state attempted to admit a drug-analysis report involving a previous arrest of the defendant without any prior notice to the defendant, for the purposes of impeaching his testimony. Such a situation is readily distinguishable from the facts present in this case.
Appellant was charged with two controlled substance offenses and, thus, he knew or should have known that the prosecution would necessarily introduce evidence establishing that the substances were illegal drugs. Had Appellant truly desired to cross-examine the chemist, he should have informed the prosecution of this desire as soon as possible prior to commencement of the trial. As to the specific allegation that his trial attorney was not aware of the prosecution’s intention to introduce the report, Appellant has no one but himself to blame for counsel’s lack of preparation, as he chose to roll the dice and proceed with the trial knowing that his attorney had not had the opportunity to conduct proper discovery. Furthermore, Appellant has not demonstrated in any way that he has been prejudiced by being denied cross-examination of the chemist. See Lockhart, 314 Ark. 394, 862 S.W.2d 265.
For the second prong of this contention, Appellant argues that the chemist’s report was not properly attested as provided in section 12-12-313. The attestation contained on the face of the chemist’s analysis report reads:
I do hereby attest and confirm as specified by A.C.A. 12-12-313, that the information listed below is a true and accurate report of the results of analysis performed by me of evidence received in a sealed condition at the Arkansas State Crime Laboratory.
The report displays a laboratory case number 95-13118 and lists the Appellant’s name along with James Martin and Ricky Glenn Bennett as suspects. The report is signed by the forensic chemist, Kathy S. Shanks, and is notarized.
We rely on this court’s previous holding in Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992), in which the appellant likewise challenged the sufficiency of the attestation of a drug analysis report. The report in that case stated:
I, Keith Kerr, Chemist, do hereby certify and attest that I personally performed the laboratory tests and prepared the laboratory analysis report in Laboratory Case No. 90-02473.
Id. at 330, 829 S.W.2d at 419. This court concluded that the attestation contained in the report was sufficient under section 12-12-313, in that it provided certain indicia of truthfulness. This court concluded further that there is no notarization requirement in section 12-12-313. We thus hold that the attestation of the analysis report in this case was sufficient and proper under the requirements of section 12-12-313.
III. Improper Sentence
Appellant argues for his third point that he was sentenced improperly to a term of ten years imprisonment for simple possession of marijuana. The State contends that Appellant was convicted of a Class C felony for marijuana possession and, as such, Appellant’s sentence of ten years was not improper nor illegal as it is within the permissible range of years for a Class C felony. We do not, however, reach the merits of Appellant’s claim as it was not properly preserved for our review below. Nowhere in Appellant’s abstract of the record is it demonstrated that this argument was ever made to the trial court — either before the bench or in his motion for new trial. We have repeatedly held that we will not consider alleged errors that were not brought to the attention of the trial court. See, e.g., Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). We thus affirm the trial court’s sentence. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Timothy Evans, was convicted of raping a fifteen-year-old boy and was sentenced to forty years in prison. We affirm.
Evans first argues that the evidence was insufficient to support his conviction. At trial, the victim testified unequivocally that Evans, a close family friend, raped him during an overnight camping trip on September 23, 1994. Evans contends that the State offered no proof to corroborate the victim’s testimony. We cannot address this issue because the appellant is presenting it for the first time on appeal. His directed verdict motion at the trial level was made on the sole ground that the prosecution had not proven the offense occurred in Carroll County. Parties cannot change their grounds for objection on appeal. They are bound by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). In any event, we have held many times that the uncorroborated testimony of a rape victim is sufficient to support a conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).
Next, Evans argues that the trial court erred in failing to suppress a videotaped statement he gave to Lieutenant J.R. Ash-lock of the Carroll County Sheriff’s Department. In November and December of 1994, Lt. Ashlock conducted an investigation concerning allegations that Evans had raped the victim herein. On December 8, 1994, Evans agreed to come in to the Sheriff’s Department for an interview. During the course of the interview, Evans confessed to the crime. Prior to trial, he filed motions to suppress his confession on the basis that he was unaware the interview was being videotaped and on the basis that the confession was the product of coercion, improper influence, and deception. The trial judge denied the motions. In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). We are unable to conduct such a review in this case because Evans has not abstracted either the videotape or the transcript of his statement, nor has he shown that the abstract requirement was waived by the court. See Rule 4-2(a)(6) of the Arkansas Supreme Court Rules. Some of the testimony at trial alluded to matters contained in the statement, but, in the absence of the statement itself, we cannot make an independent determination based on the totality of the circumstances. We are aware that a videotape does not ordinarily lend itself to abstracting in a brief, but we have held that failure to abstract the prejudicial parts of a videotape precludes our consideration of the videotape on appeal. Donihoo v. State, 325 Ark, 483, 931 S.W.2d 69 (1996); Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Additionally, Evans could easily have abstracted the transcript of his statement. Since he did not do so, we cannot address the issues surrounding the admissibility of his statement. See Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).
Finally, Evans argues that the trial court erred in excluding evidence that the victim in this case had sexually abused his stepsister. The record indicates that the abuse occurred in November of 1994, more than a month after the victim herein was raped. The State argued that such evidence was highly prejudicial and irrelevant. A trial judge’s ruling regarding relevancy is entitled to great weight and will be reversed only if the court abused its discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). We find no abuse of discretion in this case.
Affirmed. | [
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RITA W. GRUBER, Judge
| jasaba Michael Hill was charged in February 2014 with delivery of two grams or less of methamphetamine or cocaine. The charge stemmed from an October 2013 controlled buy in which confidential informant Christopher Johnson purchased drugs from Hill at a Fayetteville apartment complex where they both had lived. In August 2014 Hill was charged with possession of firearms by certain persons, stalking in the first degree, intimidating an informant, aggravated assault, terroristic threatening, battery in the second degree, and habitual offender. A December 10, 2014 amended information removed the assault and terroristic-threatening charges but added a charge of attempted capital murder, supported by an allegation that on July 28, 2014, with the premeditated and deliberate purpose to cause Johnson’s death, Hill went to Johnson’s residence armed with a pistol.
The cases were combined for a three-day jury trial that began on December 15, 2014. The jury found Hill guilty of attempted capital murder, delivery of methamphetamine, [ ^stalking, and intimidating an informant. He was sentenced as a habitual offender to enhanced prison terms of 360 months for the attempted murder, 120 months for delivery of methamphetamine, 180 months for first-degree stalking, and 120 months for intimidating an informant — the second sentence to- be served consecutively to the first, and the others to be served concurrently. He now appeals, contending that the trial court (1) erred in denying his motion for a directed verdict on attempted capital murder and (2) abused its discretion in denying his motion for a continuance. We disagree and affirm.
I. Motion for a Directed Verdict on Attempted Capital Murdex
In his first point on appeal, Hill contends that there was insufficient evidence that he took a substantial step with premeditation to kill Christopher Johnson. Hill argues that there was no proof that he actually tried to shoot the victim, leaving the jury to rely on conjecture. He acknowledges evidence showing that he was present with a firearm and had previously made threats about wanting to kill Johnson. He also acknowledges Johnson’s testimony that Hill hit him with a gun, pointed it at him, and pushed him from a balcony approximately eight feet from the ground. He asserts that this evidence is inconsistent with an intent to kill Johnson and is consistent with other reasonable inferences, such as intent to intimidate and threaten Johnson to prevent him from testifying.
A person commits capital murder if “[wjith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark.Code Ann. § 5-10-101(a)(4) (Repl. 2013). A person commits attempted capital murder if without causing the death of any person, he engages in conduct that “[cjonstitutes a [.^substantial step in a course of conduct intended to cause the death of another person.”. Ark.Code Ann. § 5-3-201(a)(2) (Repl. 2013). Conduct constitutes a substantial step if it is strongly corroborative of the person’s criminal purpose. . Ark.Code Ann. § 5-3-201(c). ;
A motion for a directed verdict is treated on review as a challenge to the sufficiency of the evidence. Cobb v. State, 340 Ark. 240, 243, Í2 S.W.3d 195, 197 (2000). The appellate court will consider only the evidence supporting the verdict and will view the evidence in the light most favorable to the State. Id. The conviction will be affirmed if substantial evidence supports it. 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. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every hypothesis is left to the jury to decide. Id. The jury is free to believe all or part of any witness’s testimony and to resolve questions of conflicting testimony and inconsistent evidence; the credibility of witnesses is an issue for the jury rather than for the appellate court. Id.
The premeditation necessary for a conviction of capital murder need not exist for a particular length of time. Alt v. State, 2011 Ark. App. 758, at ¶ 5, 2011 WL 6064865. Indeed, premeditation may be formed in an instant and is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances of the crime. Id. Premeditation and deliberation may be inferred from such factors as the conduct of the accused, the type and character of a weapon, the manner in which the weapon was used; and the nature, extent, and location of any hwounds Id. We have defined deliberation as the weighing in one’s mind of the consequences resulting from a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers. Id.
. The State’s evidence in the present case included a recording of a 911 call and the testimony by Melinda Ringgold, who made the call on July 28, 2014, to report an incident at the apartment complex where she lived. In the 911 call, Ringgold said that Hill was the aggressor, that he was holding Johnson down and telling him, “I’m gonna kill you,” and that Hill “was running after him telling him he was gonna kill him” once Johnson got away and ran. Jacobey Cooley testified that he and Hill became cellmates in the Washington County jail after Hill’s July 28 arrest and that Hill talked about the case, saying that he was trying to take Johnson’s life and shot at him when he “took off running.” The State also presented testimony of the officers who investigated the 2013 controlled buy and the 2014 incident, as well as of - Officer Tom Mulvaney, who tracked phone calls at the jail and reviewed transcriptions of those made by Hill. Viewed in .the light most favorable to the verdict, the evidence reveals the following.
Johnson’s name was released to Hill’s counsel in mid-June 2014 as the confidential informant in the undercover buy. Hill afterward began threatening Johnson, saying such things as “I’m gonna kill you for snitching, for setting me up.” Johnson became frightened and told police of the threats. On July 28, 2014, he was sitting in a stairwell in the middle of the apartment complex when he looked up to see Hill in front of him. Johnson testified as follows:
IfiHe kept on cussing me and telling me all, “You got me, you set me up, I’m fit’n to kill you right now.” That’s when he came up the stairs halfway and grabbed me and I was trying to get away from him. He kept on calling his wife, Sandra, “Bring me the gun, bring me the gun.” When he grabbed me, he hit me then with his fist. When he came up, that’s-when he grabbed me by my shirt. And like I said, I was trying to get away. He kept on calling his wife Sandra telling her to bring the gun, bring the gun and then she brought him that bag. She had a backpack. - She gave it to [him]. The gun came from the backpack. .
It was a semi-automatic, not a revolver." After she gave him the bag he told them to get out of the way, get by the road. He said he wanted them out of the way because I’m fit’n to kill this mother.... Sandra’s daughter was with her_ Once [he] had the gun he hit me on the side of the head with it, right here. He let go, that’s when I broke loose and being like this on the other side, I went over [the stair rail], and by the time I touched the ground that’s when he was charging towards me. T dropped my wallet, keys, and .phone, and by the time I grabbed my keys and wallet, it was too late to grab the rest of it ’cause he was right there on me_ [W]here I landed, I just bent down and grabbed my keys and my phone. I left my wallet behind. The gun was pointed' towards me. I guess the bullets jammed in the chamber and he was like trying to cock it back.
I ran, ... yeah, I ran. There’s a fence right there at the corner of the apartments. There’s an open gap right there. I ran right through it behind the Dollar General and Buddy’s Furniture Store. He chased me all the way to the fence. As I looked back that’s when I saw his wife picking up-the wallet. I just kept on running.-... I called the police.
Corporal David Williams located Hill shortly -afterward at a nearby- business. Hill, who did not have a gun at the time, admitted being angry with Johnson for wearing a wire during the drug buy. Hill-said that he “wanted to tag that booty”; he admitted confronting Johnson about the wire and chasing him; but he denied having a physical confrontation. Police conducted an extensive search around the" apartment complex but could not find a gun. However, Corporal James Jennings discovered a bullet with- its shell casing intact on the ground where Johnson- had landed in his fall over the stair railing. Jennings testified:
|fi[Johnson] told Officer Slape that [Hill] had been racking the slide. Finding the bullet was consistent with having racked the slide; if you rack the slide and the gun is loaded you will dispel an unfired bullet.... -I’m trained that if I have a malfunction to rack the slide to get the gun back in operation, get everything lined back up, getting the bullet lined back into the firing chamber properly so it would fire properly. So-just "because you have one malfunction doesn’t mean the second one will malfunction. Striking someone with a weapon could cause ⅞ to malfunction. .
In summary, there was testimony "before the jury that prior to the altercation, Hill expressed his intent to kill Johnson; that before and during the attack, Hill said he intended to kill Johnson for snitching; and that Hill admitted he wanted “to tag that booty.” Melinda Ringgold saw Hill attack Johnson, and she heard Hill tell Johnson that he (Hill) was going to kill Johnson: Afterward, Hill told his cellmate that he wanted Johnson dead and had fired a shot at him: Viewed in the -light most favorable to the State,-this evidence shows that Hill possessed the required mental state to commit capital murder and that he took a substantial step to complete the offense. Hill threatened to kill Johnson and made the conscious decision to attack him with a semiautomatic gun, which Hill had his wife bring him during the altercation. The gun jammed when Hill pointed it at Johnson in order to shoot and kill him, but he escaped before Hill could attempt to fire again. We hold that there was sufficient evidence to convict Hill of attempted capital murder.
II. The Motion for a Continuance
A lower court’s grant or denial of a motion for continuance is reviewed under an abuse-of-discretion standard. Creed v. State, 372 Ark. 221, 223, 273 S.W.3d 494, 496 (2008). The denial of a motion for continuance will not be overturned unless the appellant demonstrates that the trial court abused its discretion and proves prejudice that amounts to |7a denial of justice. Id. When a motion for continuance is based on a lack of time to prepare, the appellate court considers the totality of the circumstances. Mahomes v. State, 2013 Ark. App. 215, at ¶7, 427 S.W.3d 123, 127.
On December 11, 2014, Hill asked for a continuance for the following reasons: the amended information gravely changed the nature of the offenses and the exposure he would be facing; it was recently discovered that the confidential informant had been working off a drug charge rather than working as a paid informant, as the State and Hill had originally thought; and Hill’s wife was attempting to retain private counsel for him. Hill’s counsel stated to the court that on December 8, the prosecutor — upon receiving information during trial preparations that could provide evidence of premeditated and deliberated purpose to cause death — had promptly informed Hill that an amended charge of attempted capital murder was being considered. Counsel also told the court that the State had attempted to negotiate a plea with Hill under the original information and had delayed amending the information until December 10, after negotiations had failed.
In his request for a continuance, counsel asserted that he had a lot of work to do on trying to craft a defense to the mental state of premeditated and deliberated purpose. He asked for time to consult a firearms expert in order to counter the State’s anticipated testimony that racking the slide was an attempt to clear a round and fire again.
The trial court denied Hill’s request for a continuance, ruling as follows:
[C]learly, and I appreciate the candor of [counsel], the amended complaint comes as no surprise to the defendant. [Counsel was] put on notice that the State intended to do that well in advance of the amended complaint being filed. Secondly, as argued by the State, the facts in this case have not changed. The charge, obviously, has changed Rand risen to the level of a Y felony, but clearly, the charge has not changed. We’re set for trial now Monday the 15th. I’m confident that counsel has more than adequate time to prepare whatever additional preparation may be possibly necessary, although counsel indicates he needs to consult with a firearms expert. I’m confident that counsel will be able to do that within the next four days prior to the trial. So I’ll deny the motion for a continuance. This matter has been, in my judgment, here too long. It needs to be resolved and I think its in everybody’s best interest, Mr. Hill’s best interest, as well as the State’s best interest, to resolve this case with a trial beginning Monday the 15th.
The court noted that, although relatives were trying to hire new counsel, there was “absolutely nothing before the court or in the record that anybody has been hired” and that Hill fortunately was represented by “very competent counsel.” The court ordered that the case would proceed to trial as scheduled on Monday, December IS.
Hill argues on appeal that the denial of his motion for a continuance amounted to a denial of justice because, just days before trial, the amended information charging him with attempted capital murder changed the nature of the defense and that he was not afforded the time or opportunity to make preparations necessary for a defense against the charge. We review the denial of the motion under a totality of the circumstances. See Mahomes, 2013 Ark. App. 216, at 7, 427 S.W.3d at 127.
The original felony information contained seven counts, including aggravated assault, a Class D felony, and terroristic threatening, a Class D felony. During trial preparation, the prosecutor realized he would be able to prove that Hill deliberately went to the apartment complex to kill the confidential informant. The prosecuting attorney immediately informed Hill’s attorney that he intended to amend the information to include charges of attempted capital murder, a Class Y felony, but he delayed amending the information in an attempt to 19negotiate a plea with Hill under the original information. On December 10, 2014, once negotiations failed, the State timely amended the information charging Hill with attempted capital murder instead of aggravated assault and ter-roristic threatening. The facts, witnesses, and evidence for the new charge of attempted capital murder were identical to those for the previous charges. See Dodge v. State, 2014 Ark. 116, at ¶ 6, 2014 WL 1096136 (observing that the State is entitled to amend an information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or the degree of the offense charged or create an unfair surprise).
Regarding Hill’s alternate bases for a continuance, whether the confidential informant was a paid informant or was working off charges is immaterial. In addition, at the time of Hill’s motion for continuance, a private attorney had not actually been hired, and the court considered his current counsel to be competent to represent him. See Thomas v. State, 2014 Ark. App. 492, at ¶ 10, 441 S.W.3d 918, 925 (stating this court may consider the reasons for the change, whether counsel has been identified, whether the defendant has been diligent in seeking the change, and whether any prejudice is likely to result when ruling on a motion for continuance). Even if Hill demonstrated that the circuit court abused its discretion in denying his request for a continuance, he failed to allege particular facts showing prejudice that resulted in a denial of justice. See Green v. State, 2012 Ark. 19, at ¶ 3, 386 S.W.3d 413, 415 (concluding that the denial of a motion for continuance will not be overturned absent a showing of prejudice by the defendant). The trial court ruled that it was in the best interest of both Hill and the State that the case proceed to trial as scheduled. We find no abuse of Indiscretion in the denial of the motion for a continuance.
Affirmed.
Vaught and Brown, JJ., agree. | [
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BART F. VIRDEN, Judge
| ¶ Jack Gillean was convicted in the Faulkner County Circuit Court of six counts of commercial burglary after a trial by jury. He was sentenced to three years in the Arkansas Department of Correction (ADC) and was ordered to pay a fine of $10,000 on count I; on counts II-VI he was sentenced to ten years of probation on each count, and he was ordered to pay fines totaling $25,000.
I. Facts
In the summer of 2010, Jack Gillean, former Chief of Staff of the University of Central Arkansas (UCA), and Cameron Stark, a student at UCA, formed a friendship. From February 2011 to June 2012, Stark used Gillean’s keys and entry card to enter UCA buildings and several of his professors’ offices for the purpose of obtaining exams. In June 2012, Stark was arrested by the UCA police for stealing the prescription drug Adderall from Professor Andrew Linn’s office. When confronted by UCA police, Stark- told the police ^officer that in the spring of 2011 Gillean had willingly given him the keys on several occasions, and that Gillean knew Stark’s intent was to obtain exams in advance of his upcoming tests. In exchange for immunity from prosecution, Stark agreed to testify against Gillean. As a part of the immunity agreement, Stark gave the UCA police the keys and two phones he had used to text Gillean and others during the spring of 2011.
The original criminal information was filed on October 5, 2012. In response to defense counsel’s motion, the circuit court directed the State to provide in its pleading the name of the buildings on the UCA campus Stark entered, the dates the instances occurred, and the items that were taken or attempted to be taken at the time of the incident. A third and final amended information against Gillean was. filed on February 20, 2014. It set forth six counts of commercial burglary as occurring in buildings on the UCA campus on specific dates. On each count, the underlying crime was listed as theft of property, and the property alleged stolen was stated as “exam.”
The day before the trial a motion heart ing was held. At this hearing defense counsel requested that the circuit court exclude certain evidence, namely, testimony that Gillean had a sexual relationship with Ryan Scott, testimony that Gillean and Stark had consumed alcohol together, and testimony concerning Gillean’s response to questions posed to him by UCA President Tom Courtway. The motion was denied.
The trial took place March 7-11, 2014, before a Van Burén County jury. Counsel for both parties conducted voir dire and questioned the potential jurors extensively. When ^defense counsel asked the jury panel if any of them had read or heard anything about the case in the media, one potential juror responded that she was familiar with the case from reading newspaper articles and had already begun to form an opinion on the merits. She also indicated that she was not sure she could be unbiased because of her strongly held religious beliefs concerning homosexuality. The potential juror was eventually excused for cause. Other jurors stated in response to questioning that though they had some negative feelings about homosexuality in general, they could be fair, and unbiased.
At the trial, Stark testified against Gille-an. He testified that he and Gillean became friends during the summer of 2010 and that in the fall. Gillean helped Stark get a job in the office of the president of UCA. On February 11, 2011, UCA was closed due to snow. Stark testified that he and Gillean were together driving around the campus when he asked Gillean if they could get into his cell-biology professor’s office in the Lewis Science Center to obtain the upcoming exam for which Stark confessed he . was not prepared. Stark testified that Gillean let him into the building and then into Dr. Bhupinder Vohra’s office, and that he waited outside the professor’s office while Stark searched for the exam on Dr. Vohra’s computer. Stark testified that he found the files for both the upcoming exam and some older exams, and he printed off copies of all of them.
After Stark acquired the exams, he enlisted two other classmates to' answer the questions on the exams. Stark testified that over the next three months there were five ^subsequent instances when Gil-lean gave Stark his keys and sometimes his entry card, or “slide card”, so that Stark could enter the Lewis Science Center and Laney Hall, which housed two other professors’ offices, in order to obtain copies of exams. In his testimony Stark described the manner in which he obtained each test and details about where in each of the professors’ offices ’the tests' were located. All three professors testified at the trial as .to the manner in which they stored their tests in their offices. Stark’s description of the location of the tests mirrored the testimony given by each professor. Stark also testified about a particular incident prior to a March 7, 2011 exam in Dr. Menon’s physics II class. When Stark tried to enter Dr. Menon’s . office, the key .would not work. Stark testified that Gille-an had a new key made at his request, and that Stark .used the new key on March 31, 2011, to enter Dr. Menpn’s office to obtain an exam.
Jared Santiago, one of Stark’s classmates who participated in answering the exam questions with Stark, testified at the trial in exchange for immunity from prosecution. Santiago recounted for the jury the events of February 11, 2011, when Stark came to his dorm room and showed him the exams he had just taken from Dr. Vohra’s office. He testified that Stark told him that" he had been riding around the campus with Gillean that day; that Gillean told Stark that he had a key that would open any door on campus; and that they could get the key from Gillean when they wanted it. Santiago testified that Stark told him that he and Gillean had gone to Dr. Vohra’s office, and Stark printed off copies of the upcoming test. Santiago testified that the two agreed to solve' the test questions together. Santiago explained to the jury that Stark had told him that he and Gillean were friends and that he could get Gillean’s key and entry card to obtain tests in the future. Santiago described I ¿breaking into Dr. Tarka’s office with Stark and that the tests in that instance were on Dr. Tarka’s desk in a stack. On that occasion, Santiago described how they had copied the exam and then restapled the exam and placed it back into the center of the stack. Santiago identified State’s exhibit 8 as the exam they had taken from Dr. Tarka’s office that night. Santiago . also recounted the incident when the key did not work for. Dr. Menon’s office and recalléd that Stark had told him that Gille-an-had obtained a new key from the maintenance office. Santiago testified' that Stark did not always have the key during that semester but that he asked for it as he needed it. ’'
' Santiago also recounted an occasion when they were not able to 'get Gillean’s key because Stark had angered Gilleah by wrecking his motorcycle. 'Santiago testified that after they could not find Gillean’s key in his truck, which was parked at the airport while Gillean was out of town, Santiago encouraged Stark to do whatever was' necessary to patch things up with Gilléan. Santiago testified that, after the 2011 spring semester, Stark took the key from Gillean and did' not give it back to him. ’ " '
Two employees of UCA’s physical plant also testified for the State: George McKee identified the keys Stark .had given to UCA police as Gillean’s, and he also identified to ’which buildings the keys corresponded. William K. Manning, testified about the automatic reports created anytime an entry card is used to enter UCA buildings and that these reports showed that Gillean’s card had been used on the dates and at the times Stark testified he had entered Laney Hall to obtain exams. Manning also testified that Gillean reported that he had lost his “grandmaster” key that- opened all the buildings on the UCA campus, and that 16Gillean had requested a new grandmaster key. Manning identified a document dated March 7, 2011, as the record of that request and that the document had been signed -by Gillean.
Jeff Scarborough, a former mentor to Stark and an acquaintance of Gillean, testified for the State. Scarborough explained that when he noticed that Stark was partying more than he had been previously and that Stark’s grades were dropping, he confronted Stark. Scarborough explained that Stark responded by saying that he did not have to worry about studying anymore, and he confessed that he had been using Gillean’s keys, with Gillean’s knowledge to enter faculty -offices and to obtain upcoming exams. Scarborough testified that he confronted Gillean about-his involvement and warned Gillean that his participation in Stark’s activity could hurt-his career. Scarborough testified that he and Gillean “talked about that a little bit and then he .goes, T know. I know.’ ”
Tom Courtway,' the president of UCA, testified for the State. Courtway stated that in either November or December 2011, he had a meeting, with Gillean to discuss what course of action the university should take concerning Gillean’s missing master key. • ■
Courtway also testified about the events leading to Gillean’s arrest. He testified that on June 12, 2012, he became aware óf Stark’s arrest and the allegations that Gil-lean had assisted him with the burglaries. Courtway put Gillean on administrative leave the next day. After listening to an audio-taped phone call from Jeff Scarborough corroborating the allegation that Gil-lean had willingly given Stark the master key, Courtway testified that he and Graham Gillis, the associate vice president of administrative services at UCA, met with Gillean. The meeting took place on June 15. Courtway testified that he told Gillean that he wanted him- to listen to the recorded phone call. Courtway testified Gillean did not seem 17shocked or surprised when he explained that the recording presented a damaging statement about Gillean’s possible involvement in Stark’s criminal activity. Courtway testified that Gillean said, “I don’t want to listen to it,” and he requested that Courtway not play the recording. Courtway testified that he pressed Gillean again to listen to the recording and said to Gillean, “We’ve worked together a long time, and I want to give you every opportunity and I want you to argue with me if you feel like you need to about this audio tape and the contents of it, and everything else because I want to be fair.” According to Courtway, Gillean responded, “Then I’ll go ahead and resign.” Courtway testified that Gillean left the meeting and tendered his resignation by email that same day.
Lastly, Courtway testified about the value of the integrity of exams to the university, and that it was “hard to put a number on” the value of those exams.
The State rested its case in chief, and defense counsel moved for a directed verdict on the commercial-burglary charges. First, defense counsel argued that the State had not proved that any thefts that had occurred amounted to felony theft and that misdemeanor theft did not satisfy the requirements of the statute. Defense counsel also argued that the State had not proved deprivation of property had occurred because of Stark’s actions and that deprivation was essential to the definition of theft. The circuit court took the matter under advisement; after a hearing on the matter, the motion was denied.
The jury found Gillean guilty of all six counts of commercial burglary. Before the sentencing hearing began, defense counsel objected to the introduction of testimony from Detective Brian Williams who conducted the forensics testing of the two phones Stark had given to investigators upon his arrest. Williams had uncovered text messages between Stark |8and Gillean showing that Gillean supplied Stark with marijuana on several occasions, and the State argued that the texts should be admissible to illustrate Gillean’s close relationship with Stark. Defense counsel argued that the evidence was more prejudicial than probative. The motion was denied. Gillean was sentenced by the jury to three years in the ADC and was assessed a fine of $10,000 on count I. On counts II-VI, the jury .sentenced Gillean to ten years’ probation on- each count and assessed $5000 on each count. This appeal followed.
II. Points on Appeal
Gillean raises six points on appeal. We will address Gillean’s fourth point on appeal, a challenge to the sufficiency of the evidence against him, first. Second, we will address Gillean’s three points on appeal in which he challenges the admissibility of certain evidence. Third, we will address Gillean’s assertion that the criminal information provided insufficient due-process notice of the criminal behavior of which he was accused. Last, we will address Gillean’s assertion that the circuit court erred during the sentencing phase of his trial when it allowed testimony concerning his illegal-drug use.
A. Sufficiency of the Evidence
Gillean challenges the sufficiency of the evidence of commercial burglary. Because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Benjamin v. State, 102 Ark. App. 309, 310-11, 285 S.W.3d 264, 266 (2008). A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Woodson v. State, 2009 Ark. App. 602, at 7, 374 S.W.3d 1, 5. When the sufficiency of the evidence is challenged, we consider only the evidence that |flsupports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). 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 the other. Id. On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).
At the close of the State’s evidence, Gillean moved for a directed verdict. In support of his motion for directed verdict, Gillean asserted that the State failed to prove Stark’s intent to commit a felony, Gillean argued that the theft that occurred amounted to a misdemeanor at most because the State failed to put forth evidence proving the value of the exams such that the thefts would constitute a felony. Furthermore, Gillean argued that the State failed to prove the necessary element of deprivation of property because Stark took photos or photocopied the exams, and, except in one instance where Stark made a photocopy of the exam and left the professor’s office with a few pieces of paper, he never actually removed any property from his professors’ offices. ■ We disagree, - and we affirm.
Arkansas Code Annotated section 5-39-201(b), sets forth the elements of commercial burglary:
(1) A person commits commercial burglary if he or she enters or remains unlawfully in a commercial occupiable structure of another person with the purpose of committing in the commercial occupiable structure any offense punishable by imprisonment.
(2) Commercial burglary is a Class C felony..
(Emphasis added.) Misdemeanor theft is punishable by one year imprisonment. Ark.Code Ann. § 5-4-401(b). No minimum value is required for proof, of misdemeanor theft of | mproperty. Reed v. State, 353 Ark. 22, 29,109 S.W.3d 665, 669 (2003). Theft of property is defined at Arkansas Code Annotated section 5-36-103(a) (Repl. 2006):
(1) A person commits theft of property if he or she knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property;
(2) Or obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property.
Arkansas Code Annotated section 5-36-103(b)(4)(B) (Repl. 2013) provides that theft of property is a class A misdemeanor if “the property has inherent, subjective, or idiosyncratic value to its owner or possessor even if the property has no market value or replacement cost.” Property is defined as either tangible or intangible personal property, including any paper or document that represents or embodies anything of value. Ark.Code Ann. § 5-36-101(7). Deprive means to “[wjithhold property or to cause it to - be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner.” Ark.Code Ann. § 5-36-101(4).
First, we address Gillean’s assertion that the predicate offense underlying the charges of commercial burglary must be a felony; therefore, the circuit court erred in denying his motion for a directed verdict. Gillean relies on Holt v. State, 2011 Ark. 391, 384 S.W.3d 498, in support of this assertion. In Holt, our supreme court held that the appellant’s argument concerning the intent element of the residential-burglary statute was not preserved for its review, but in addressing the point on appeal, it stated that the residential-burglary statute required illegal entering with intent to commit a felony in the residence. Id. |n at 505. Gillean argues that thus, our supreme court has interpreted the commercial-burglary statute to require intent to commit a felony.
Gillean’s contention is incorrect for two reasons. First, because the court in Holt declined to reach the issue of intent, the interpretation of the residential-burglary statute is dicta, and our appellate courts are not bound by mere comments not intended as a decision of the court. Green v. State, 343 Ark. 244, 251, 33 S.W.3d 485, 490 (2000). Dicta includes any discussion or comment in an opinion that is unnecessary to the decision reached. Id. Secondly, since Holt, our court has held that misdemeanor theft of property is sufficient to support a burglary charge. See Washington v. State, 2013 Ark. App. 148, at ¶ 4, 2013 WL 765311 (“Since misdemeanor theft of property is an offense punishable by imprisonment, both elements of the commercial-burglary statute have been satisfied.”) This holding reflects the plain language of the statute requiring that, to be found guilty of commercial burglary, one must enter the premises with the intent to commit a crime “punishable by imprisonment.” Ark.Code Ann. § 5-39-201(b)(1) (emphasis added). We find no merit in Gillean’s assertion that the commercial-burglary statute requires intent to commit a felony. Because misdemeanor theft is punishable by one year imprisonment, the circuit court did not err in finding that the requirements of the commercial-burglary were met.
Gillean also argues that the State failed to prove the value of the exams by not eliciting testimony describing the value from the professors whose exams were photocopied or photographed. In this way, Gillean asserts, the State impermissi-bly forced the jury to determine the value of the exams. See Cannon v. State, 265 Ark. 270, 273-74, 578 S.W.2d 20, 22 (1979) (“We have heretofore rejected the idea that common knowledge and | ^experience could serve as a substitute for evidence of value which is a necessary element of a crime [.]”)
The State called all of the professors whose exams had been stolen to testify. The State questioned Dr. Bhupinder Voh-ra, Stark’s cell-biology professor in the spring of 2011, about the value of his exams:
PROsecutoh: Dr. Vohra, is there — as a professor in a university is there some value to you having those exams safe and not out in public domain?
ÜR. Vohra: Yeah, it should not be out because we are testing students on those exams. So it should not be out to anyone. So that’s the value.
PROsecutor: Kind of hard to put a number on it.
Dr. Vohra: Oh, you can’t put a number — those are — you can say those are invaluable and — because you are students based on that. Their future depends on that. So you cannot put value in time or money or anything. ...
Dr. Richard Tarka, Stark’s, organic-chemistry professor in the spring of 2011, also testified and stated that he had never given anyone permission to take a test from his desk. The State then elicited his testimony as to the value of maintaining the secrecy of the contents of an exam:
ProsecutoR: And it may. seem like a silly question, Dr. Tarka, but why— why would you not do that?
Dr. Tarka: ... I’m trying to evaluate how well they’ve understood the material, and I have to have a level playing field for all the students, and if they have a copy of the test beforehand that gives them an unfair advantage.
PROSECUTOR: , It kind of undermines the — .
Dr. Tarka: Absolutely, yeah.
| ^Stark’s former physics professor, Dr. Balraj Menon, also testified as to the inherent value of the exams:
PROSECUTOR: Alright. And why is it important to you to protect your exams?
DR. Menon: Well, it is a fair evaluation of the students and I — -and I think everybody should be given the — you know, have a fair chance of taking it and shouldn’t — I don’t want to give anybody an advantage—
PROSECUTOR: Yes, sir.
Dr. Menon: —over anybody else, yes, yes.
Prosecutor: Does that have some value to you as an instructor?
Dr. Menon: Absolutely, yes. These are my tests. These are questions that I come up with and those are my — yes.
President Courtway also testified, that the integrity of the exams was inherently valuable to an academic institution:
[A]t the core of any education institution stands for academic integrity that the public and the students and others have to know that a degree from that university is worth something and that as they go out into the world that they’ve earned their grades, they’ve passed their exams, and that the dégree that they’ve received is valid and critical arid important as they go through life.
Gillean argues that because the State failed to prove the replacement cost or monetary valué of the exams, and because the testimony elicited from the professors did not show -the inherent value or worth to the .professors, value was not proved. We disagree. The professors’ testimony supported the State’s assertion that the tests had inherent value to the students, to the.professors themselves, and to the university as an academic institution. No minimum value was required to be shown, and we hold that the circuit court did not err in finding that the State adequately proved that the owners of the .exams were deprived of the exams’ inherent value, and that the value of the exams was appropriated to Stark when he copied the information therein. On this point, we affirm.
|UB. Admissibility of Testimony
On appeal, Gillean asserts that during his trial the circuit court erred when it admitted testimony over his objection. Gillean challenges three instances of admitted testimony: (1) the circuit court allowed testimony that Gillean and Scott had a romantic relationship; (2) the circuit court allowed testimony that Gillean drank alcohol with Stark; and (3) the circuit court allowed testimony concerning Gille-an’s reaction when President Courtway tried to persuade Gillean to listen to a recorded statement concerning his role in Stark’s criminal activity. We-agree in part and disagree in part, and we hold that where the circuit court erred in admitting testimony, the error was harmless.
1. Standard of review
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and this court will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Jones v. State, 2011 Ark. App. 324, at ¶4, 384 S.W.3d 22, 24. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision but requires that the circuit court acted improvidently, thoughtlessly, or .without due consideration. Id. Moreover, an appellate court will not reverse a circuit court’s evidentiary ruling absent a. showing of prejudice. Id.
2. Applicable law
Rule 401 of the Arkansas Rules of Evidence 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 | ir,evidence.” Ark. R. Evid. 401 (2015). Arkansas Rule of Evidence 402 further provides that “[e]vidence which is not relevant is not admissible.” Ark. R. Evid. 402 (2015). For evidence to be relevant, it is not required that the evidence prove the entire case; rather, all that is required is that it have any tendency to make any fact that is of consequence to the determination of the action more or less' probable. Banks v. State, 2010 Ark. 108, at ¶¶ 4-5, 366 S.W.3d 341, 343-44. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403 (2015). Morris v. State, 358 Ark. 455, 458, 193 S.W.3d 243, 246 (2004).
a. Gillean’s and Scott’s romantic relationship
Gillean asserts that the testimony concerning his relationship with Scott was both irrelevant, and alternatively, if the evidence was relevant, that the probative value of the testimony was outweighed by its prejudicial impact. We hold that the circuit court erred in finding that testimony concerning Scott’s and Gillean’s romantic relationship was relevant.
At Gillean’s trial, Scott testified that when he was living in Gillean’s home in the spring of 2011, he witnessed Gillean give Stark his keys, and that he heard the two of them discussing the key exchange on several occasions. Scott recalled for the jury that he had advised Gillean against helping Stark obtain the exams, but that Gillean responded that he did not care. Scott also testified that after Stark’s motorcycle accident, Gillean was angry with Stark. Scott testified that during, this hiatus in Gillean’s .and Stark’s friendship, Gil-lean instructed Scott that, while- Gillean was out of town, Scott should not give Stark.the keys if he asked for them.
li(iNone of the testimony offered by Scott related to his romantic relationship with Gillean and could have been offered by any roommate who lived in Gillean’s household. Scott’s sexual relationship with Gillean did not place him in any better position to observe the events that led to criminal charges being brought against Gillean. The nature of their relationship is immaterial to the testimony offered by Scott, and therefore we hold the circuit court erred in allowing irrelevant evidence; however, even when a trial court errs in admitting evidence, our supreme court has 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. Cobb v. State, 340 Ark. 240, 246, 12 S.W.3d 195, 199 (2000). ’ '
i. ' evidence of guilt''
Upon our review of the evidence, we hold that the requirement of the first prong of the harmless-error apalysis— overwhelming evidence of guilt — was met. At the trial, Stark explained that initially, during the 2011 spring semester, he had used his friendship with Gillean to get the keys from him, b,ut eventually Stark came into possession of the keys by simply keeping them after he woke up with the keys one morning after a night of drinking with Gillean. Jared Santiago testified at trial that Stark had told him of Gillean’s knowingly giving him the keys, and Santiago described breaking into their professor’s office together to copy an exam. Dr. Voh-ra identified the stolen test, and Santiago corroborated that the break-in occurred the day before the test was given. Dr. Tarka testified that he had printed the tests out the day before and left them on his desk. Dr. Tarka’s testimony about the | ^placement of the tests in his office matched the testimony of both Stark and Santiago about the manner in which they obtained. Dr. Tarka’s test and where they found the test in his office.
Testimony from the employees of UCA’s physical-plant department also supported the State’s case against Gillean. William K. Manning offered testimony specifying the dates that the automatic reports were created when Gillean’s entry card had been used to enter the UCA buildings. The dates Manning cited corresponded with Stark’s accounts of when he used Gillean’s card to enter the same buildings to obtain the exams. Manning’s testimony concerning his conversation with Gillean about getting a new key made also supported Stark’s testimony that Gillean had another key made when the one Gillean gave Stark did not work properly. Manning identified the key-request form that Gillean had filled out, dated, and signed.
Scott’s testimony supported the State’s assertion that Gillean was aware of Stark’s burglary and intent to procure exams. Scott testified that, after the motorcycle accident, Gillean instructed Scott to refuse to give Stark the keys if he asked for them. Scott testified that he counseled Gillean against helping Stark and that he witnessed Gillean give Stark the keys upon his request.
Jeff Scarborough testified that Stark confided in him that he was using Gillean’s keys to steal exams and that when Scarborough confronted Gillean about it, Gille-an did not deny the allegations, and he stated, “I know. I know.” In light of the evidence presented against Gillean, we hold that the requirement of the first prong of the harmless-error test has been met.
118ii. prejudice
• We now turn to the second prong of the harmless-error analysis: whether the error in allowing the evidence was slight. In determining whether the error is harmless, the appellate courts look to see if the appellant was prejudiced by the erroneously admitted evidence; prejudice is not presumed, and a conviction will not be reversed absent a showing of prejudice. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008).
During voir dire, defense counsel questioned the potential jurors about what they had heard and read in the media. One potential juror explained to the court that she had read several newspaper articles arid recited some of the facts of the ease and also some conclusions she had drawn from reading the articles. She told the court that she not only had a preformed opinion about the merits of the case, but she also felt that she could not be fair to Gillean because he was a homosexual. She was excused for cause. Defense counsel followed up on the issue with the remaining potential jurors by extensively questioning them about their beliefs and attitudes toward homosexuality and whether their beliefs would prevent them from being unbiased toward Gillean:
Defense Counsel:. Do any of you have feelings like that? I mean, is there something that could come out about Jack in this trial, about the way he lives, whatever, that just makes you say, “Oh, my god, no way. He did that. He’s guilty of what he’s charged with.” Mr. Howard, you seem to be studying that.
Potential JuROh: Well, I’m apostolic.
Defense Counsel: Well, I apostolic, too.
Potential JuROR: But, we’ll let the Lord clean them up.
Defense Counsel: I’m sorry? Let the Lord—
| ^Potential JuRor: Let the Lord clean them up.
Defense Counsel: Clean them up?
Potential JuRor: We’re not judging. Let the Lord clean them up.
Defense Counsel: All right. Well, let me get specific with you. You are going to hear evidence in this case that Jack Gillian had a sexual relationship with another man. How do you feel about that, Mr. Howard?
Potential JuROR: That’s not what he’s on trial for.
Defense Counsel: Mr. Howard, can you put aside what the Bible teaches and apply the law that the Judge says you have to apply?
Potential Juror: Yes, I can. Yes, I can.
Defense -Counsel: Let me — I’m sorry, but this issue concerns me a lot so I’m going to ask you a couple of more questions on that.
Defense Counsel: Mr. French, how would you feel if a • gay or lesbian couple bought the house next to you?
Potential Juror: Well, I may be different, but as long as it didn’t affect me, I wouldn’t have a problem.
Defense Counsel: Ms. Pelzer, how about you?
Potential Juhor: Considering the fact it wouldn’t bother me; okay? I have friends or what I consider friends — I don’t think I’m— it wouldn’t bother me. Let’s just leave it at that.
Defense Counsel: Okay. Ms. Griggs, let me ask you; Do you think an employer should have the right to refuse to hire somebody because of their sexual orientation? .
Potential JuroR: No, that’s discrimination. - ■
Defense Counsel: Ms. Madison, I think I know your "answer to this question. If somébódy you worked with closely was gay or lesbian, would that bother you at all?
| ^Potential Juror: I’ve had. It doesn’t bother me.
Potential Juror: About the only thing I would have said was would I have a problem with somebody that’s homosexual living next to me. Not if they kept it' to themselves. But if they threw it in my face, I’d have a problem with it; But if they kept it to themselves,- I don’t have a problem with that.
Defense Counsel: Okay. Anybody else?
Potential Juror: And when I say that, I mean, like, come into my house and, like, forcing me to accept their lifestyle. That’s what I mean when I say that.
Defense CounseD: Sure. Wouldn’t have a problem working with one closely?
Potential Juror: No, sir. No, nothing like that. I just don’t want them to throw that in my face.
Defense Counsel: Well, I was going to deal with that later, but he brought it up, so let’s deal with it right now. Do any of you have religious beliefs -that homosexuality is wrong?
(Several jurors raise their hands.)
Defense Counsel: Most of you do. And you heard me-talk about God’s law and, man’s law. Are there any of you who would feel obligated to find Jack Gillean guilty in,this case because of your religious beliefs?
(No audible response.),
Defense Counsel: Can all of you assure me that whatever you believe about homosexuality that you can decide this case solely on the evidence that’s presented in the courtroom and the law that the Judge gives you in this case? (No audible response.)
Defense Counsel: I got your solemn oath on that. Cause I’ll tell you, that’s my biggest worry in this case is that Jack will get convicted because of homosexual conduct not because |¾¶ of what he’s charged with in the case. Do /all promise me you can do that? (Jurors nod heads up and down.)
The voir dire reveals that even though some jurors held negative views about homosexuality in general, they, all came to the conclusion .that they could.be fair and try the case on its merits. It has been long held that jurors are presumed unbiased and qualified to serve. Howard v. State, 367 Ark. 18, 36, 238 S.W.3d 24, 39 (2006), and with that in mind, we find no error.
At .the pretrial hearing, defense counsel presented evidence in the form of studies that indicate .that prejudice against homosexuals is inherent in conservative communities like Van Burén County. Defense counsel also cited caselaw from our jurisdiction and others in which the courts have recognized prejudice that arose from attitudes toward homosexuality. Though Gil-lean makes a common-sense Argument that evidence of homosexuality is inherently prejudicial — and even points to instances in which prejudice has been found — he has not demonstrated actual prejudice in the -present case. In light of the overwhelming evidence of Gillean’s guilt and in an absence-of a showing of prejudice, we hold that the circuit court’s error in admitting the irrelevant testimony concerning Gille-an and Scott’s homosexual relationship was harmless.
a. Consumption of alcohol
Gillean contends that the circuit court erred in allowing the introduction of evidence that Gillean and Stark drank socially at Gillean’s home and at various events, and the evidence only served to negatively influence the jury’s perception of Gillean’s character. We disagree, and on this.point we affirm.
I j>aThe testimony concerning Gillean’s alcohol consumption was relevant evidence within the. scope of Rule 401 because it tends to show the familiar, social nature of Gillean’s relationship with Stark — a fact that is of consequence to the determination of whether Gillean conspired to commit commercial burglary in order to help his friend gain access to his upcoming exams. The evidence that Gillean and Stark drank socially together also supported the State’s assertion that after a night of drinking with Gillean, Stark woke up with the keys in his possession. The evidence of the two drinking together illustrated how Stark used his familiarity with Gillean to gain access to the keys and that ultimately Stark did not know exactly how he came into possession of Gillean’s keys. Because the testimony concerning Gillean’s alcohol consumption with Stark demonstrates their friendship, and the charges against Gillean involve intent that would have arisen out of their friendship,, the circuit court did not err in allowing the evidence.
b. Gillean’s reaction
Gillean’s final challenge to the admissibility of evidence during the trial concerns President Courtway’s testimony describing Gillean’s reaction to his request that Gille- an listen to a' recorded phone call concerning his involvement in Stark’s illegal activities. Gillean asserts that the testimony was highly prejudicial and that the resulting prejudice outweighed the probative value; alternatively, Gillean argues that the introduction of the evidence violated his Fifth Amendment right against self-incrimination. We disagree, and on this point we affirm.
On June 15, 2011, two days after Court-way placed Gillean on administrative leave due to the allegations against him, Court-way requested a meeting with Gillean and Dr. IgsGraham Gillis, vice-president of academic affairs. At the meeting, Courtway asked Gillean to listen to a recorded phone call from Jeff Scarborough in which Scarborough described Gillean’s involvement in Stark’s illegal activities. Gillean responded that he did not want to listen to the recording. Courtway explained to Gillean that he wanted to be fair and give Gillean a chance to defend himself. In response, Gillean stated, “Then I’ll go ahead and resign.” Gillean left the meeting shortly thereafter and tendered his resignation that same day.
i. relevance
In Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000) (internal citations omitted), our supreme court held as follows:
Under the res gestae exception,, the State is entitled to introduce evidence showing all circumstances which explain the charged act, show a motive for acting, or illustrate the accused’s state of mind if other criminal offenses are brought to light. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction— Res gestae evidence is presumptively admissible.
We hold that the circuit court was within its discretion to overrule Gillean’s Rule 401 and 403 objections and to allow Courtway to testify about what had occurred before Gillean’s arrest when Gillean was confronted with evidence of his guilt. The evidence was relevant to inform the jury of the circumstances that led up to Gillean’s resignation and to his arrest. Courtway’s testimony concerning Gillean’s reaction — that Gillean did not deny the allegations and voluntarily resigned from his job — allowed the jury to understand the events that led to Gillean’s resignation and to formal charges being filed against him.
19Aii Fifth Amendment
At the pretrial hearing, defense counsel asserted that Courtway’s testimony concerning Gillean’s reaction to Courtway’s request to listen to the recorded phone call was inadmissible as a violation of Gillean’s Fifth Amendment protection against self-incrimination... The State responded that Gillean was not in custody, nor did Gillean unequivocally invoke his right to remain silent; therefore, he could not object to Courtway’s testimony on Fifth Amendment grounds. Gillean asserted that he fell under the exception to both the requirement that the witness be in “custody” and that the Fifth Amendment protection against self-incrimination be invoked unequivocally. The circuit court agreed with the State, and it denied the motion to exclude Courtway’s testimony. We find no error, and on this point we affirm.
The Fifth Amendment to the United States Constitution provides that “no person ... shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” Salinas v. Texas, — U.S. -, 133 S.Ct. 2174, 2178, 186 L.Ed.2d 376 (2013).
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the United States Supreme Court held as follows:
[T]he prosecution may not use statements, whether exculpatory or in-culpatory, stemming from cústodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
The Supreme Court set the parameters of the Fifth Amendment privilege against self-incrimination:
12,-[T]he Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect peréons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.
Our supreme court has also defined the term “custody” as “when he [a person] is deprived of his freedom by formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Hall v. State, 361 Ark. 379, 389, 206 S.W.3d 830, 837 (2005). In” resolving the question of whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. Id.' The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated. Id.
Gillean argues that the meeting on June 15 between him, Courtway, and Gillis amounted to custody. To support his assertion, Gillean asserts that the circumstances of the June 15 meeting are analogous to the facts presented in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In Garrity, police officers from certain boroughs of New Jersey were being investigated for involvement in “fixing” traffic tickets. When they were questioned by investigators from the Attorney General’s office, they were given a choice: either incriminate themselves by answering investigator’s questions or forfeit their jobs under New Jersey statute dealing with forfeiture of office or employment, tenure, and pension rights of persons refusing to testify on grounds of self-incrimination. The appellants in Garrity answered the questions, and their answers were used against them in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. The officers were convicted, and on appeal they argued that that, their statements were coerced “by [¡¡¿reason of the fact that, if they refused to answer, they could lose their positions with the police department.” Id. at 495, 87 S.Ct. 616. The Court agreed:
The choice imposed on petitioners was one between self-incrimination or job forfeiture. Coercion that vitiates a confession ... can be ‘mental as well' as physical’; ‘the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ Subtle pressures may be as telling as coarse and vulgar ones. The question is whether the accused was deprived of his ‘free choice to admit, to deny, or to refuse to answer.’
Id at 496, 87 S.Ct. 616 (internal citations omitted).
We hold that Garrity is inapposite to the present ease. Gillean has not presented evidence to support his assertion that he was subject to the same kind of coercion as the appellants in Garrity. Neither Court-way nor Gillis threatened him with removal from his position during the meeting, and Courtway encouraged Gillean to argue with him and defend himself. Ultimately, Gillean voluntarily resigned from his position without prompting. We cannot say the circuit court abused its discretion in allowing Courtway’s testimony concerning Gillean’s reaction to his request that Gille-an listen to the recording; therefore, we find no error, and we affirm.
|a7C. Due Process
Gillean asserts that the criminal information did not give him adequate notice that his conduct amounted to the crime of being an accessory to burglary for the purpose of committing theft of property; therefore, his due-process rights were violated. The crux of Gillean’s argument is that because the criminal information listed “exam” as the property stolen, Gille-an had inadequate notice that Stark’s stealing of information, not the exams themselves, constituted theft. Thus, Gille-an argues he was forced to speculate as to the charges against him, and he was not given fair notice of what the State would attempt to prove at his trial. We disagree, and on this point we affirm.
It is axiomatic that due process requires that the defendant be provided sufficient notice of the precise criminal charges brought against him and that he must have adequate opportunity to prepare his defense. Johnson v. State, 71 Ark. App. 58, 69, 25 S.W.3d 445, 452 (2000).
The criminal information listing the charges against Gillean was amended three times, and the final amended felony information was filed on February 20, 2014. In it, the State listed six commercial-burglary charges predicated on theft of property. Each charge listed the date of the incident and the building on the UCA campus in which the alleged criminal activity occurred. An “exam” was listed as the property stolen for each charge.
Gillean’s due-process argument is closely related to his challenge to the sufficiency of the evidence in that he relies on Holt, supra, to support his argument that “if the | ^commercial burglary elements included anything less than felony theft, [then he] was not given adequate notice that his conduct was criminal and was therefore denied due process.”
We hold that the circuit court did not err in finding that Gillean was sufficiently informed of the charges against him. For the reasons we'stated'in,our discussion of Holt, supra, we affirm on this point.
D. Sentencing Evidence
Gillean argues that, during the sentencing phase, the circuit court erred in admitting testimony concerning Gillean’s marijuana use, and the admission resulted in prejudice. We review a circuit court’s decision to admit evidence in the penalty phase of a- trial for an abuse of discretion. Holley v. State, 2014 Ark. App. 557, at ¶ 8, 444 S.W.3d 884, 889. We will reverse a sentencing decision only if the defendant can show that he was prejudiced by- the erroneously admitted evidence. Wilson v. State, 100 Ark. App. 14, 15, 262 S.W.3d 628, 629 (2007); The pivotal legal point, however, is that our court need not decide the issue if the appellant cannot establish prejudice from the- admission • of the evidence during sentencing. Holley, supra., A defendant who is sentenced within the statutory range — and .short of the maximum sentence-r-cannot establish prejudice. Tate v. State, 367 Ark. 576, 583, 242 S.W.3d 254, 261 (2006) (declining to decide alleged sentencing-phase error because the defendant received less than the maximum sentence and therefore could not establish a prejudicial error).
Therefore, to show that the circuit court abused its discretion by allowing evidence of Stark’s and Gillean’s use of marijuana was. reversible error, Gillean must show that prejudice resulted from the admission of the evidence. The minimum sentence for | ¡^commercial burglary is three years. , Ark.Code Ann. §.5-4-401(a)(4). Gillean’s sentence was three years on the first Count and ten years’ probation on each of the remaining counts. Because Gillean was sentenced to the minimum sentence on the first coupt-and to probation on the remaining counts, he cannot establish prejudice. -On this point we affirm. - -
III. Conclusion
We hold that the circuit court did not err in denying'Gillean’s motion for a directed verdict. Though we' find error in the circuit court’s admission of testimony concerning the relationship between Scott and -Gillean, we hold that the error was harmless. As to the alcohol-related testimony and the testimony concerning Gille-an’s reaction to the recorded statement, we find no error. We hold that the circuit court did not err in finding that the criminal information sufficiently informed Gille-an of the charges against him. Lastly, we find that the circuit court did not err during the sentencing phase in admitting evidence related to Gillean’s marijuana use. We affirm.
Affirmed.
Kinard and Hoofman, JJ., agree.
. On February 28, 2013, Gillean filed a motion for change of venue from the Faulkner County Circuit Court to the Van Burén Circuit Court because of extensive negative coverage of the case in the media. Gillean filed an amended motion for change of venue on May 6, 2013, requesting that the circuit court move the trial to the Searcy County Circuit Court because he had discovered that the negative publicity had “saturated the potential jury pool in Van Burén County as well." On June 3, 2013, the circuit court entered an order moving the trial to the Van Burén County Circuit Court.
. Because we agree that the testimony concerning their romantic relationship was irrelevant and therefore inadmissible, we need not address the issue of probity. .
. Gillean asserts that Green v. City of North Little Rock, 2012 Ark. App. 21, 388 S.W.3d 85 supports his argument that he was questioned under threat of removal. In Green, our court held as follows:
The Fifth and Fourteenth Amendment right protected in Garrity, however, is the privilege to be free from being compelled to communicate or otherwise provide testimony. Giving a blood or urine sample for drug testing does not violate that privilege. Garrity simply has no application in this situation, and Green's arguments to the contrary are unavailing. In short, we con-elude that the trial court correctly granted the City’s motion for summary judgment on this issue.
Id, at 15 [374 S.W.3d 1] (internal citations omitted). Green involved drug-testing an officer during an investigation. A blood sample does not constitute "testimony.” See Schmerber v. California, 384 U.S. 757, 764 [86 S.Ct. 1826, 16 L.Ed.2d 908] (1966). This court held that there was no violation of Green’s Fifth Amendment privilege against self-incrimination, and thus, we do not agree with Gillean’s assertion that Green applies to the present case. | [
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CLIFF HOOFMAN, Judge
11 Appellant Kenneth Cole Sizemore appeals after he was convicted by a Washington County jury of misdemeanor negligent homicide and was sentenced to twelve months’ imprisonment in the county jail and fined $2,500.. On appeal, appellant’s sole contention is that the trial court erred in denying appellant’s motion for a directed verdict. We affirm appellant’s conviction, but we remand in part for the circuit court to correct the sentencing order to reflect that appellant was convicted of misdemeanor negligent homicide pursuant to Arkansas Code Annotated section 5-10-105(b).
Appellant was charged with one count of manslaughter, a Class C felony, for recklessly causing the death of Zachary Tyler Hagan. A jury trial was held on February 17-18, 2015. On January 12, 2013, while driving a 2008 Chevrolet Tahoe, appellant’s vehicle rolled over, killing one of the two passengers, Hagan, who was ejected from the front passenger seat. The [ 2other passenger, Griffin Smith, testified at trial that he was friends with both Ha-gan and appellant; that he did not remember any of the events leading up to the accident; that he had a history of ingesting drugs with appellant and Hagan; that he thought he remembered an officer speaking to him after the accident but did not remember the questions' or answers; that he did not remember telling an officer that he had bought an air-duster canister that night; and that he did not remember telling an officer that all three of them had been.“hitting the air duster.”
Kelly Hon testified that she had been driving on the road the night of the accident. She testified that while driving she heard squealing tires and observed appellant’s vehicle weaving into the turn lane and then traveling toward her in her lane. She witnessed the vehicle cross lanes, ov-ercorrect, hit an embankment, and flip. She had observed that, although it was a cold night, there was no ice or any other precipitation present on the road that night and that the road seemed fine. Another eyewitness, Christopher Comer, testified that he also had noticed headlights wiggling and coming toward him at approximately 11:30 or 11:45 in the evening. He further explained that he witnessed the vehicle come across all five lanes, hit a curb, and flip over. When Comer assisted appellant out of the vehicle, appellant initially told him that he was not driving but later stated that he was.
Officer Marcus Peace, employed by the Fayetteville Police Department, testified that he responded within minutes of the accident. While on the scene, appellant told Officer Peace that he had hit a patch of ice on the road, causing him to lose control of the vehicle. Officer Jason Christopher Adverado, an accident recon- structionist with the Fayetteville Police | ¡¡Department, testified that he also was called out to the scene. He introduced several pictures of the accident and of the canisters of air duster that were found during the investigation. He further indicated that an air duster can be used as an intoxicant. He noted that the weather conditions were dry at the time of the accident and that he did not observe any ice on the road.
Officer Kurtis Sutley, a drug-recognition-expert instructor with the Fayetteville Police Department, testified that appellant’s blood was drawn at the hospital after the accident. He also found a Wal-Mart receipt in Hagan’s right front pants pocket that indicated that three canisters of air duster had been purchased just prior to the accident. Officer Sutley explained that canned air is classified as an inhalant and that it is a very fast-acting drug but dissipates very quickly. The drug in canned air, difluoroethane, causes oxygen deprivation to the brain and can cause one to pass out. Officer Sutley also testified that he had questioned appellant after the accident at the hospital. He testified that appellant’s story was inconsistent. Initially, appellant alleged that he had not taken any drugs in several days and that he had not stopped at Wal-Mart on the night of the accident. However, after Officer Sutley pointed out the inconsistencies in appellant’s story, appellant told him that he had stopped at Wal-Mart but denied using any drugs. Officer Sutley testified that appellant had alleged that he lost control when he had hit a patch of ice on the road.
Trooper Bobby Clemence for the Arkansas State Police testified at trial that he had been assigned to the state-wide crash-reconstruction team. He had analyzed the “black box” of the vehicle after the accident. He explained that the information revealed that the vehicle 14was traveling at sixty-six miles an hour at two and a half seconds before the accident. The vehicle continued to increase its speed to seventy miles per hour with ninety-five percent throttle at one and a half seconds, seventy-one miles per hour with one hundred percent throttle at one second, and seventy-three miles per hour with one hundred percent throttle at a half second. The rollover sensor recorded that the vehicle was traveling at seventy-five miles per hour when the vehicle started to roll. The instrumentation further indicated that the brakes were never engaged and that the accelerator was steadily pushed down to full throttle during the accident.
Danny Sanders testified that he was a forensic toxicologist with the Arkansas State Crime Lab. He explained that appellant’s blood sample detected a presence of difluoroethane and tested positive for ben-zodiazepines, cannaboids, and oxycodone. He. could not, however, specifically opine how long the drugs had been in appellant’s system. He indicated that difluoroethane was a gas found in air-duster canisters and was a short-lasting drug that he would have expected to be out of a user’s system within twenty to thirty minutes if it was ingested through the mouth. Second-hand exposure would dissipate even sooner. He further opined that a person would be affected by difluoroethane if it was found present in a person’s blood. Although there would be a definite effect on a person, Sanders stated that the specific effects could vary on each person. Furthermore, Sanders opined that a large amount of the gas had to be ingested for the gas to remain in appellant’s system.
Detective Brian Lindabury with the Fayetteville Police Department testified that he also had interviewed appellant early in the morning on January 13, 2013. Appellant told him |sthat he was driving that night because Smith and Hagan had taken pills and needed a designated driver. Appellant indicated to him that he lost control after hitting a patch of ice on the road. A Wal-Mart surveillance video showed Smith and Hagan purchasing three cans of canned air from the store minutes before the accident; however, appellant had indicated at. that interview that only two canisters of air were purchased. Appellant denied using any drugs the night of the accident. Another video played for the jury showed that, appellant’s vehicle was traveling at a higher rate of speed at the time of the accident than the other traffic. Although Detective Lindabury testified that he had not submitted the air-duster cans for a fingerprint analysis, he testified that three cans of canned air were recovered during the. investigation of the accident. He specifically testified that the Wal-Mart receipt indicated that the cans were purchased at 11:33 p.m., the first call reporting the accident was received at 11:46 p.m., and appellant’s blood was drawn at the hospital at 3:18 a.m.
After the State rested, appellant’s counsel properly moved for a directed verdict, arguing that the charges should be dismissed on the basis that there was insufficient evidence to support a conviction of manslaughter or the lesser included offense of negligent homicide. Counsel argued that there was no. testimony that indicated that the drugs in appellant’s system affected his ability to drive, evidenced any knowledge of a risk, or evidenced appellant’s level ■ of impairment or intoxication. Furthermore, counsel , argued that the jury would have to rely on speculation and conjecture- to reach a verdict and that, at best, the evidence-supported that appellant was merely careless or inattentive. The trial court denied appellant’s motion for a directed verdict.
1 (Appellant testified on his own behalf. He testified at trial That the accident occurred because Hagan had sprayed air duster in his face .while he was changing the music on his iPhone, He further explained that he had the phone in one hand and used his other hand to slap Hagan’s hand. Appellant contended that, when he did so, he went up on the curb and lost control of the vehicle, at that time. He also maintained at trial that he. had pot ingested any medications, narcotics, or any other drugs the night of the accident.
After appellant’s counsel properly renewed appellant’s motion for a directed verdict at the close of all evidence, the trial court again denied the motion. The jury found appellant not guilty of manslaughter but found him guilty of the lesser included offense of misdemeanor negligent homicide. The jury recommended a sentence of one year in the county jail and a fine of $2,500. After appellant was sentenced in accordance with the jury’s recommendation, this timely appeal followed.
Appellant’s sole contention is that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Robinson v. State, 98 Ark. App. 237, 254 S.W.3d 750 (2007). On appeal from a denial of a motion for a directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial' evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. |7The jury is free to believe all or part of a witness’s testimony, and we do not weigh the credibility ,of witnesses on appeal, as that is a job for the fact-finder and not the appellate court. Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364.
“A person commits negligent homicide if he or she negligently causes the death of another person.” Ark. Code Ann. § 5-10-105(b)(1) (Repl. 2013). “A person who violates subdivision (b)(1) of this section upon conviction is guilty of a Class A misdemeanor.” Ark. Code Ann. § 5-10-105(b)(2). The criminal code states that a person is criminally negligent when the person “should [have] be[en] aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.” Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2013). The criminal code further states that “[t]he risk must be of such a nature and degree that the actor’s failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. considering the nature and purpose of the actor’s conduct and the circumstances known to the actor.” Ark. Code Ann. § 5-2-202(4)(B).
Our supreme court in Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006) affirmed a conviction for negligent homicide when the evidence showed that the defendant was driving a large commercial-garbage truck on a bridge and crossed the center line, struck a vehicle that swerved to get out of the truck’s path, remained in the wrong lane of traffic for approximately one hundred and fifty feet without braking or swerving, and then collided with a pickup truck on the bridge, killing the driver. The Utley court affirmed the conviction, reasoning that “[a] person driving a garbage truck around a curve and on a bridge should be aware -that driving |son the wrong side of the road presents a substantial and unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that ear.” Id, at 518, 237 S.W.3d at 30.
Here, the evidence presented at trial indicated that the weather conditions were clear that night and that no one had observed any ice on the road at the time of the accident. Appellant was observed weaving, crossing five lanes of traffic at high speed, hitting a curb, and rolling his vehicle. An accident reconstructionist testified that the vehicle’s black box indicated that the vehicle’s speed had increased to seventy-five miles per hour before rolling over, that the brakes were never engaged, and that the throttle had been fully and completely pushed down. Furthermore, there was additional evidence that three cans of air duster had been purchased minutes before the accident and that a blood sample had detected the presence of difluoroethane, a fast-acting gas found in air-duster canisters, in appellant’s blood. A forensic toxicologist further opined that a person would be affected by difluoroe-thane if it was later found present in a person’s blood. Therefore, after viewing the evidence in the light most favorable to the State, we hold that substantial evidence supports the jury’s verdict.
Although we affirm appellant’s conviction, there is an error in the sentencing order that must be addressed.. Although appellant was found guilty, of committing misdemeanor negligent homicide, the sentencing order incorrectly recites that he was convicted of the offense of negligent homicide pursuant to Arkansas Code Annotated section 5-10-105(a)(l), which is a Class B felony. It is apparent to us that the sentencing order reflects a scrivener’s error. Riley v. State, 2011 Ark. App. 511, 385 S.W.3d 355. A circuit court can enter an order |snunc pro tunc at any time to correct clerical errors in a judgment or order. Id. Accordingly, we affirm appellant’s conviction, but we remand in part for the circuit court to correct the sentencing order to reflect that appellant was convicted of misdemeanor negligent homicide pursuant to Arkansas Code Annotated sec-, tion 5 — 10—105(b).
Affirmed; remanded in part for corrected sentencing order.
Harrison and Kinard, JJ., agree. | [
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DAVID NEWBERN, Justice.
Brandon Anthony Isbell shot and killed Lois Wallace in the course of a robbery of a grocery store in Stuttgart. He was convicted in a jury trial of capital murder for causing the death of Ms. Wallace in furtherance of the robbery and under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1995). Mr. Isbell was sentenced to life imprisonment without parole. We affirm the judgment.
The murder occurred October 28, 1994, when Brandon Isbell was aged 14 years. The sufficiency of the evidence is not at issue, so we need not recite the facts in great detail. In a pretrial statement given to the police and again in his testimony at the trial, Mr. Isbell said he and two friends, Clint Lammers and Sean Smith, planned to rob the store to get money to run away from home. Clint Lammers had a .357 pistol. On the day of the crime they acquired a second weapon by taking a .22 pistol from the home of Mr. Isbell’s grandmother. They walked to the grocery store and spoke of using the .22, which was the quieter of the two weapons, to shoot the grocery check-out clerk so she could not identify them. Mr. Isbell had fired the .22 pistol previously and knew that the double action did not work, so the hammer would have to be cocked to fire it. The three first purchased some batteries and then continued to mill about the grocery store. Mr. Isbell then approached Ms. Wallace, the store clerk, and pointed the .22 pistol at her head. The gun discharged, and Ms. Wallace went down. Mr. Isbell stood up on the counter, attempting unsuccessfully to get the cash register open. They ran from the store, taking only the batteries, some cigarettes, and a pair of gloves. They went to Clint Lammers’ home from which they phoned the police to turn themselves in. In relating the story to the police, Mr. Isbell said, “It didn’t turn out like it does in the movies.”
1. Admissibility of pretrial statement
In his first point of appeal, Mr. Isbell contends the Trial Court erred in overruling his motion to suppress his pretrial statement. When he was taken into custody, Mr. Isbell was questioned by a police officer after executing a waiver form indicating his knowledge and understanding of his rights and declining the assistance of counsel. Although his mother was present in the police station and had expressed her wish to speak with Mr. Isbell, she was not allowed to do so until the interrogation had been completed.
The officer who interrogated Mr. Isbell confirmed that he had told Mr. Isbell of his rights, including the right to an attorney, but the officer admitted at the suppression hearing that he did not give any extra explanation as he did not wish Mr. Isbell to have an attorney or parent present because that would have hindered the effort to obtain a confession.
Citing Ark. Code Ann. § 9-27-317, Mr. Isbell argues as follows:
a waiver of the right to counsel shall be accepted only upon a finding by the court from clear and convincing evidence, after questioning the juvenile, that (1) the juvenile understands the full implications of the right to counsel; (2) the juvenile freely and voluntarily and intelligently wishes to waive the right to counsel; and (3) the parent ... for the juvenile has agreed with the juvenile’s decision to waive the right to counsel.
The argument made in Mr. Isbell’s brief to this Court is not that the State has failed to show that the waiver was involuntary or not intelligently made; rather, it is that Mr. Isbell was not given the benefit of the requirement that his parent enter an agreement to the execution of the waiver of the right to counsel.
Previously, § 9-27-317(f) provided that, “All waivers of the right to counsel shall be in writing and signed by the juvenile and his parent, guardian, or custodian.” The General Assembly removed the requirement that the parent sign by Acts 67, § 1, and 68, § 1, of the Second Extraordinary Session of 1994 which became effective August 26, 1994, some two months before Mr. Isbell’s offense occurred. By amending the opening subsection of § 9-27-317, those same acts made it clear that its provisions, at least subsections (a) through (f), apply in “a delinquency or family in need of services hearing.” Subsection (g)(2)(A) of the statute provides:
No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
(i) Does not wish to be questioned;
(ii) Wishes to speak with a parent or guardian or to have a parent or guardian present; or
(iii) Wishes to consult counsel before submitting to any questioning.
If the provisions of subsection (g) apply beyond the juvenile forum, they were not invoked here. There is no showing or argument that Mr. Isbell, when taken into custody, asked to consult with his parent. Mr. Isbell’s argument on appeal includes a remark to the effect that the burden should not have been placed on a 14-year-old to ask to consult with his parent, but that is precisely where subsection (g) places it.
Our Rule 4-3 (h) requires that we examine the transcript in a case in which there has been a sentence to death, life imprisonment, or life imprisonment without parole to determine any errors prejudicial to the appellant. Mr. Isbell’s motion to suppress his confession was not limited to the failure to give him the protection of the Juvenile Code. Rather, it was couched in general terms as well, stating the confession was involuntary and not intelligently given.
When a person in police custody makes a statement after executing a waiver of rights, the law makes admissibility in evidence of the statement dependent upon a showing that the waiver was made voluntarily and intelligently. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994); Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994). That requirement obtains regardless whether the person said to have executed the waiver is entitled to the protection of the Juvenile Code. In deciding whether we are convinced, according to the totality of the circumstances, that a confession was voluntarily and intelligently given, we consider whether the special rights accorded to a juvenile by statute were observed by the authorities taking the statement. Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979).
Our conclusion on this point is that even if the confession should have been suppressed, the error was harmless beyond a reasonable doubt in view of the fact that Mr. Isbell testified at his trial and repeated every material aspect of his pretrial statement.
In Fulminante v. Arizona, 499 U.S. 279 (1991), the Supreme Court considered a case in which two pretrial confessions had been given. The first was found to have been coerced and thus not admissible. The issue was whether the error could be considered harmless and the conviction affirmed in view of the second confession. Although the reversal of the conviction by the Arizona Supreme Court was ultimately affirmed, the majority of the members of the Supreme Court applied a harmless-error analysis to the issue, holding that the error was not harmless.
In his trial testimony, essentially repeating his earlier confession, Mr. Isbell clearly admitted having committed every element of capital-felony murder. Unlike the facts in the Fulminante case (which need not be recited), there were no factors tending to make Mr. Isbell’s second statement unreliable. No argument is made pursuant to Michigan v. Long, 463 U.S. 1062 (1983), that this Court should consider independent and adequate state grounds for holding that the error, if any, in admitting the first confession should be considered harmful per se. See Note, Arizona v. Fulminante: Should Arkansas Courts Apply Harmless Error Analysis to Coerced Confessions, 45 Ark. L. Rev. 995 (1983).
Certainly there was no argument presented to the Trial Court suggesting that Mr. Isbell was forced to testify because his earlier statement was admitted, nor is that argued here. We assume his testimony was given to emphasize his contention that he did not consciously pull the trigger and that the officer who testified about his pretrial statement was not being truthful when he pointed out that Mr. Isbell did not seem to be upset. Apparently the decision to testify and give a “judicial confession” was solely that of Mr. Isbell and his counsel.
2. Gunshot-residue testimony
The State presented the testimony of Gary Lawrence, of the Trace Evidence Section of the Arkansas State Crime Laboratory. Mr. Lawrence testified as an expert that a gunshot-residue kit containing a swab used to test Mr. Isbell showed gunshot residue on both Mr. Isbell’s hands. Counsel objected to the testimony because the test had been administered without the use of control swabs, and Mr. Lawrence’s report stated it was incomplete and thus its result severely jeopardized.
After hearing the arguments of counsel, the Trial Court correctly admitted the evidence, having concluded the objection would go to weight to be given to Mr. Lawrence’s testimony rather than its admissibility. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995); Redman v. St. Louis S.W. Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994). In view of our ruling on Mr. Isbell’s statement, including his admission of having shot the victim, any error in admitting the gunshot-residue testimony would have been harmless.
3. Failure to provide witness statement
Jevon Buder, a friend of Mr. Isbell, testified about two conversations between them. The first conversation occurred prior to the commission of the crime. Information about that conversation was provided to the defense in the form of Mr. Butler’s written statement given to the police on the day the crime occurred. Mr. Butler said Mr. Isbell and Mr. Lammers discussed with him their plan to commit crimes and run away. On the witness stand, he spoke of what “they,” referring to Isbell and Lammers, told him. Counsel for Mr. Isbell objected, contending that any statement as to what Mr. Lammers had said was hearsay because Mr. Lammers was not present and testifying at the trial and thus subject to cross-examination. In response, the Prosecutor refined the questions to assure that the testimony related only statements made by Mr. Isbell. In effect, the objection was sustained.
Mr. Butler also testified about a conversation during a telephone call made to him by Mr. Isbell from jail. He said Mr. Isbell told him in that conversation that he had kicked Ms. Wallace in the head as her head lay on the counter after the shooting. The argument on appeal is that the State violated its obligation, provided in Ark. R. Crim. P. 19.7, to inform the defense about Mr. Butler’s oral statement.
When the testimony was presented, counsel for the defense merely said “objection.” The Prosecutor responded that he did not know of any basis for the objection other than that the defense did not want to hear the evidence. The Court said “overruled,” and counsel did not mention a ground of objection or any authority for it. The Trial Court was thus not informed as to the nature of the objection. Absent a specific objection informing the Trial Court of the nature of the error alleged on appeal, we do not reverse. Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995).
4. Surprise rebuttal witness
After Mr. Isbell testified and the defense rested its case, the Prosecutor announced he wanted to present two witnesses of whose testimony he had learned the previous evening at the jail. Both were to testify about statements Mr. Isbell had made while in jail. The first witness was a police officer, and the Trial Court disallowed his testimony on the ground that the knowledge of the officer was imputed to the prosecution and should have been provided earlier to the defense.
The second witness was Fate Childress, an inmate in the jail. Defense Counsel objected on the ground that he could have been informed by the Prosecutor the night before or earlier in the trial about Mr. Childress’s prospective testimony. The Prosecutor responded that he had assumed Mr. Isbell would not testify and that Mr. Childress was a rebuttal witness who would rebut Mr. Isbell’s testimony about being “shaken” by the crime and sorry that it had happened. It would, he said, also rebut Mr. Isbell’s statement that an investigator “lied” when he said Mr. Isbell did not seem to be upset about the crime on the day it occurred and he was taken into custody.
The objection was overruled, but court was recessed a short time to allow Defense Counsel to confer with the witness. When he returned to the courtroom, Defense Counsel renewed his objection. He pointed out that Mr. Childress would testify about what Mr. Isbell had said in the presence of Mr. Childress and seven or eight other prisoners and Defense Counsel could not possibly interview them all in the middle of the trial to learn what the other prisoners may have heard.
Mr. Childress testified (as abstracted, omitting record page references):
Mr. Isbell came in and was telling us about how he went in after the money. He said the bitch was moving too slow and after she got up to the counter he said I just pulled — shot her and let her know that I wasn’t playing. He said you should have seen the glasses fly from her face. He acted like nothing had happened. He just said you know “The bitch deserved to die.” All of us was standing around there, yes sir.
Obviously, the Rules of Criminal Procedure do not require the State to provide the defense with the names of rebuttal witnesses because until the defense case has been presented the State cannot know of witnesses needed for rebuttal. Wainright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). The argument here is that the State did not tell the defense about the oral statement of Mr. Isbell to Mr. Childress as it was required to do pursuant to Ark. R. Crim. P. 17.1(a)(ii) which requires disclosure by the prosecution to the defense of “any oral statements” made by the defendant. Although we have some doubt whether the Trial Court was informed of this argument with respect to Mr. Childress’s statement, we will address the issue on its merits.
The only specific case authority cited on this point by Mr. Isbell is Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), in which a ground upon which we reversed the conviction was the failure to disclose rebuttal testimony of which the Prosecutor purportedly learned only minutes before it was presented. There we referred to Ark. R. Crim. P. 19.2, which requires the prosecution to notify the court and opposing party of information discovered during the trial if disclosure of it is required by the Rules. In the Bennett case, no such disclosure was made, and the witness’s testimony was a complete surprise to the Trial Court and to the defense. In this case there was disclosure, albeit later than the defense would have liked, in accordance with Rule 19.2, and the Trial Court was thus permitted to consider whether it was proper rebuttal or not.
If the prosecution had known during its case-in-chief of the evidence to be presented by Mr. Childress, it might properly have been presented then, but that does not mean the evidence was not proper for rebuttal. In Pyle v. State, 314 Ark. 165, 862 S.W.2d 821 (1992), we said rebuttal evidence may overlap the State’s casein-chief. It must, however, be responsive to the defense evidence. In Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986), we disallowed evidence presented as rebuttal because the prosecution had elicited on cross-examination the evidence it then sought to rebut. We pointed out that it is within the Trial Court’s discretion to decide the propriety of evidence offered in rebuttal. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996): Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995). There was no abuse of discretion in this instance.
5. Judicial confession
In response to all four of the points argued by Mr. Isbell and discussed above, the State’s brief responds only that there can be no prejudice resulting from any of the errors alleged in view of Mr. Isbell’s “judicial confession.” We agree, as noted above, that Mr. Isbell’s testimony admitted every element of capital-felony murder. The only arguable exception might be a lack of evidence that he caused the death “under circumstances manifesting extreme indifference to the value of human life.” That element is provided by the mere fact of pointing a loaded gun at the deceased in the course of a robbery, whether or not there was an intent to shoot. See Davis v. State, 325 Ark. 96, 925 S.W.2d 402 (1996).
The only case from this Court cited by the State for the proposition that the judicial confession cured the alleged errors is Towe v. State, 304 Ark. 239, 801 S.W.2d 42 (1990). In the Towe case we agreed, in an obiter dictum, with the decision of our Court of Appeals in Pool v. State, 29 Ark. App. 234, 780 S.W.2d 350 (1989). There the Court of Appeals declined an invitation to throw out a judicial confession on the ground that it had been induced by the presentation of physical evidence which should have been suppressed.
Beginning with Hays v. State, 268 Ark. 701, 597 S.W.2d 821 (Ark. App. 1980), in which it was said that evidence rules could be “relaxed” when a defendant had confessed in open court, our Court of Appeals has developed a line of cases dealing with the effect of judicial confessions. Perhaps the strongest statement came in Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989), in which it was said that “allegedly improper evidence was of no consequence to the appellant and not prejudicial.” That may be so when the evidence has to do solely with the elements of the crime and whether they were committed. In a case, however, where the evidence alleged to have been received in error may have further consequences, such as influencing the jury with respect to the sentence to be received, prejudice may occur.
While it may be said in the case now before us that there was no possibility of prejudice from, for example, the testimony of Mr. Childress as the jury imposed the lesser of the only two possible sentences, we remain unwilling to make a statement that a judicial confession universally cures trial error. We have thus addressed the merits of the issues even though the State declined to do so.
6. Other errors
As discussed earlier, the transcript of the record in this case has been reviewed in accordance with our Rule 4-3(h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.
Affirmed.
Glaze, J., concurs solely because the errors submitted by appellant on appeal are harmless in view of his judicial confession during his case-in-chief. | [
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ROBERT L. Brown, Justice.
This is the third time that we have considered matters relating to appellant Bennie Lamar Cleveland’s crimes committed on December 29, 1991. We first affirmed the judgments against Cleveland for capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. See Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993). The United States Supreme Court, however, vacated our decision and requested that we reconsider the appeal in light of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419 (1994). We did so and reversed the judgments and remanded the matter for a new trial. See Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994). In July 1995, Cleveland was retried and convicted of first-degree murder, attempted capital murder, and theft of property. He was sentenced to life in prison for first-degree murder, twenty years for attempted capital murder, and five years on the theft-of-property charge, with all sentences to run consecutively. Cleveland now raises one issue on appeal: that the trial court erred in failing to declare a mistrial based on his Batson objection. We hold that there is no basis for reversal, and we affirm.
On December 29, 1991, at approximately 9:00 p.m., Wendall Moten got out of a car driven by Cleveland and entered Cash’s Quick Check, a convenience store in McGehee. Moten later testified that his purpose was to determine whether Paula Easter, who was employed as a cook at Cash’s, was there. Moten returned to the car, informed Cleveland that Easter was in the store, and shortly thereafter, Cleveland entered Cash’s brandishing a loaded .22 caliber pistol. Moten accompanied him armed with a shotgun, which was fired into the wall. Easter, Michelle Nagle, who was a cashier at Cash’s, and a customer named Willard Blackmon were in Cash’s at the time.
Cleveland approached the booth where Easter, Nagle, and Blackmon were talking and said: “I told you that no police could keep me away from you.” By the time the three realized what was happening, he fired a single shot at Michelle Nagle. The bullet entered her right arm and exited into her upper chest, which caused her to die almost immediately. The State’s firearms expert testified that, in his opinion, the shot was fired from a distance of two to four feet.
Willard Blackmon attempted to escape through a door at the rear of Cash’s, but Cleveland prevented this by shooting Blackmon in the back and in the arm. Blackmon testified that he lay silent and still on the floor to feign death and avoid being shot again. He also stated that he saw Cleveland attempting to open the cash register with a key, but that Cleveland failed to do so.
Easter attempted to escape too but did not succeed. She testified that she ran to the kitchen to get hot grease to throw on Cleveland but that the grease was cold. She stated that she threw a trash can at him and then ran and hid in the store’s cooler. Easter came out of the cooler after Cleveland told her that if she did not do so, she would never see her daughter again. Easter, Moten, and Cleveland then left Cash’s and went to the car parked in front of the store. Cleveland returned to the store and came back to the car with Easter’s purse and a metal box from Cash’s that contained money and food stamps. The testimony was unclear as to whether he also returned with a .357 magnum pistol taken from the store.
After leaving Cash’s, the three went to Little Rock, where they stopped for crack cocaine and later checked into a Motel 6. Moten left Easter and Cleveland and did not return. The next morning, Cleveland stole a truck and drove with Easter to Tennessee, Ohio, New York, and New Jersey. They were arrested in New Jersey. Easter told the arresting state trooper that she had been kidnapped. The trooper recovered two .22 caliber pistols from the truck and found Easter in possession of cocaine.
The pair were returned to Arkansas, and Cleveland was charged with capital felony murder or first-degree premeditated murder, attempted capital felony murder or attempted first-degree murder, aggravated robbery, kidnapping, and theft of property. On retrial, after reversal by this court, Cleveland defended himself pro se. He was convicted as set out above and sentenced.
For his sole point on appeal, Cleveland argues that the State violated the mandate of the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), by exercising six peremptory strikes against six black members of the venire. He contends that he made a prima facie showing of racial discrimination injury selection, and that, with the exception of one of the six explanations, the prosecutor’s reasons “could well be characterized as implausible or fantastic.” He concludes that the State did not meet its burden of providing racially neutral explanations.
The State initially emphasizes in its brief: (1) Cleveland is black; (2) the State used only seven of its ten peremptory strikes; (3) the resulting jury consisted of eight black and four white members; and (4) the two alternate jurors were black. The State further argues on appeal that no prima facie case was made and that a prima facie case is a necessary first step for mounting a Batson objection. See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). The State’s argument, however, was never made to the trial court. When Cleveland objected to the six peremptory strikes by the prosecutor, the trial court immediately asked the prosecutor for a racially neutral explanation. The prosecutor proceeded to explain his strikes, and the trial court subsequently denied Cleveland’s motion for a mistrial. The prosecutor never argued that a prima facie case was not made, and, thus, the issue was not developed below.
This court addressed this identical point in Prowell v. State, supra, when we stated:
Although the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge, here, the prosecutor volunteered explanations for the challenges; the trial court made no rulings on whether a prima facie case was made. In Hernandez v. New York, 500 U.S. 352 (1991), the Court stated that once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Id.; see also Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).
324 Ark. at 345, 921 S.W.2d at 591. That is what occurred in the instant case. We hold that where no challenge to a prima facie case is waged and where the trial court proceeds to hear the prosecutor’s race-neutral explanations and then denies the Batson motion, the issue of a prima facie showing is moot.
The relevant inquiry then becomes whether the trial court was correct in denying the mistrial motion based on the reas'ons given. Our standard of review in such matters is whether the court’s finding of satisfactory reasons was clearly against the preponderance of the evidence. Prowell v. State, supra; Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). We, therefore, turn to the six challenges and individually examine the reasons given.
The prosecutor stated that he struck Jacqueline Wade because a deputy sheriff with the Desha County Sheriff’s Department had seen her making eye contact and “mouthing words” to Cleveland during voir dire. Though the trial court, the prosecutor, and Cleveland all assumed in their discussions about Batson explanations that members of the venire were initially asked whether they knew Cleveland, this precise question does not appear in the record. Nevertheless, we conclude that this communication between a prospective juror and the defendant provided ample justification for a peremptory strike. The prosecutor challenged Clementine Martin because he had previously charged her with second-degree battery and believed that she was prejudiced against the State. Yvette Anderson was struck because she was seen by the prosecutor “mouthing words” to Cleveland when her group walked by Cleveland’s table in the courtroom. The prosecutor argued that it was appropriate to strike Sharon Pickett because she knew members of Cleveland’s family and the victim’s family. And the prosecutor struck two ministers, Charles Taylor and Donnie Burns. Reverend Taylor was seriously concerned about sitting in judgment of others. Reverend Burns contended that it would be a hardship to serve on the Cleveland jury, vote to convict him, and then counsel other prisoners at the state penitentiary, including Cleveland. We find no fault in the trial court’s acceptance of these reasons as satisfying the requirements of Batson v. Kentucky, supra.
As a final point, this court has noted that one of the best answers to a challenge of racial discrimination is to point to a jury that is comprised of members of the race in question. See Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Tucker v. State, supra. In Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994), we held that the State gave a sufficient racially neutral explanation after noting not only the composition of the jury, which contained black members, but also that the State had not used all of its peremptory strikes. See also Tucker v. State, supra. In the case at bar, the State used only seven of its ten peremptory strikes. When these two elements are combined with the explanations given by the prosecu tor at trial, this case must be affirmed.
The record in this case has been examined pursuant to Ark. S. Ct. R. 4-3 (h), and no rulings adverse to Cleveland which constitute prejudicial error have been found.
Affirmed. | [
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Per CURIAM.
Petitioner, Sherman Noble, has petitioned this court to issue a writ of mandamus to the Honorable Fred Davis, III, Circuit Judge, and to Jeanette Hence, Circuit Clerk. We decline to issue the writ.
The partial record shows that on May 21, 1996, the circuit court entered an order adverse to petitioner. Thirty-one days later, on June 21, 1996, petitioner filed a notice of appeal and designation of record. On June 26, 1996, the circuit judge dismissed the notice of appeal, and the circuit clerk refuses to tender a record to this court.
The circuit judge was in error in dismissing the appeal. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. Barnes v. State, 322 Ark. 814, 912 S.W.2d 405 (1995). At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record, which would allow the appellate court to determine whether the appeal should be lodged. Barnes, 322 Ark. at 815, 912 S.W.2d at 406. However, even though the circuit judge erred, we decline to issue a writ of mandamus. The notice of appeal was untimely, see Ark. R. App. P. 4(a), and it would be a vain and useless act to mandamus the circuit judge to reinstate the notice of appeal and then dismiss the appeal in this court. The law does not require a vain and useless act. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).
Writ declined. | [
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Tom Glaze, Justice.
Appellant Shirley Chlanda visited her sister, Evelyn Fuller, in the hospital, and during that visit, Shirley claims her sister gave her some jewelry with an estimated value of $50,400.00. Per Evelyn’s instructions, Shirley located the jewelry in Evelyn’s and her husband’s, Milford Fuller’s, home, and took possession of it. Shirley kept the jewelry in her luggage while she stayed at the Fuller home during Evelyn’s sickness. During Shirley’s stay, Evelyn died. Afterwards, Shirley gave Milford temporary possession of the jewelry, but Milford also died less than two months later before Shirley was able to obtain the return of the jewelry.
Appellee Lewie Killebrew was named co-administrator of Milford’s estate, and Shirley demanded the return of the jewelry. Killebrew denied he had possession of it, and Shirley subsequently filed this conversion litigation, alleging Evelyn had given her jewelry to Shirley, and Killebrew was wrongly retaining it. Killebrew answered, maintaining he had never possessed the jewelry. In fact, he asserted the so-called missing jewelry had been found hidden in Milford’s bedroom, and because he had no access to Milford’s bedroom, the discovery of the jewelry in the Fuller home proved he had never possessed it. Killebrew moved for summary judgment, alleging no genuine, material fact was in issue. The trial court granted the motion, but we hold the trial court erred.
Killebrew’s summary judgment motion was supported by three affidavits, his, Ron Kersch’s and Ron Campbell’s. In his affidavit, Killebrew averred that he at no time possessed the jewelry sought by Shirley, nor did he have the key to obtain the jewelry from the Fuller house after Milford died. Killebrew said that, immediately after Milford died, he gave his only key to the house to Ron Campbell, the trust officer of Milford’s estate. Killebrew further asserted he was never again alone in Milford’s house. However, he said he was in the Fuller house when Ron Kersch, an auctioneer, was inventorying it and found a box of jewelry located in Milford’s bedroom. Upon opening the box, Killebrew said the jewelry “appeared” to contain the jewelry described by Shirley in her lawsuit. Killebrew stated that he had this newly discovered jewelry appraised, but the jewelry items were not sold. Instead, the jewelry is presendy being held by Campbell. Kersch’s and Campbell’s affidavits generally support Killebrew’s averments. Kersch related that both Killebrew and Campbell were present when Kersch found the box of jewelry, and they recognized it as being the “same type” claimed by Shirley. In his affidavit, Campbell recognized the jewelry “as being similar” to the “same (sic) jewelry” described in Shirley’s lawsuit. A list of the discovered jewelry items was also attached to Killebrew’s motion. Killebrew argues the foregoing is proof that he never possessed the jewelry Shirley claims and that the jewelry-found by Kersch when inventorying Milford’s house is that claimed by Shirley.
Contrary to Killebrew’s claims, we find the record reveals proof submitted by Shirley that, at least, raises an issue of material fact concerning (1) whether Killebrew ever took possession of Shirley’s jewelry, and (2) whether the jewelry found by Kersch is the same jewelry that Shirley is claiming. We first consider Kille-brew’s claim that he had never seen any of Evelyn’s jewelry claimed by Shirley or possessed any of it. Besides her complaint and own affidavit describing the jewelry given to her by Evelyn, Shirley submitted with her response to Killebrew’s summary judgment motion the affidavits of Jeffrey Harper and Delbert Chappelle, former employees of Milford’s. Harper attested that, after Milford died, he heard Killebrew tell Chappelle that he, Killebrew, had the jewelry and “Evelyn’s bitch sister isn’t going to get any of it.” Harper further averred Milford had previously instructed Harper and other employees that they “were to do everything they could to make sure” Shirley got the jewelry. Harper asserted Killebrew disclosed to Harper that he had all of Evelyn’s things he wanted, and Killebrew had gone through the safety deposit boxes and the office safe. Chappelle’s affidavit, too, related that Killebrew said that he had Evelyn’s “good jewelry” and “Evelyn’s bitch sister isn’t going to get any of it.”
Shirley’s affidavits by Harper and Chappelle suggest Killebrew had previously possessed Evelyn’s jewelry and intended to keep Shirley from getting it. Clearly, Shirley’s affidavits conflict with Killebrew’s proof, and when such conflicts exist and summary judgment is sought, all evidence presented in support of the motion must be viewed in the light most favorable to the nonmoving party. Car Transp. v. Garden Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991). Here, Shirley’s affidavits can be fairly read to dispute Killebrew’s factual claim that he had never seen or possessed any of Evelyn’s jewelry now sought by Shirley.
Finally, while Killebrew maintains the jewelry found in the Fuller house is the same jewelry as that sought by Shirley and therefore resolves any conversion claim she now asserts, we must disagree for two reasons. First, we have made an attempt to compare the jewelry items described in Shirley’s complaint to those items listed and described as having been found in the Fuller house, and we conclude it is impossible to determine whether these items could be the same. In fact, the descriptions of the items listed by each party vary so much in detail that they defy comparison. We would point out, too, that Shirley’s list of jewelry included an expensive diamond pyramid ring, and while Killebrew remembered Evelyn having such a ring, that ring is not mentioned in the list of jewelry items found by Kersch.
Because our review reveals that disputed factual issues remain unanswered, we hold the trial court erred in granting Killebrew’s motion for summary judgment. Therefore, we reverse and remand for further proceedings. | [
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Per Curiam.
The appellant, Darrell Profit, has filed a motion for rule on the clerk. As he filed his notice of appeal prior to the entry of the judgment and commitment order, it was of no effect. His attorney, William Owen James, Jr., admits responsbility for failing to perfect the appeal.
We treat the motion as one for a belated appeal and grant the motion. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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TOM GLAZE, Justice.
Western Waste Industries filed this petition for writ of prohibition to prevent the Circuit Court of Miller County from asserting jurisdiction over claims Western Waste contends belong to the Arkansas Workers’ Compensation Commission. Western Waste owned and operated a municipal solid-waste landfill in Texarkana, and Toronza Wilson was its employee until Western Waste closed the landfill in 1993. Subsequently, Wilson filed claims against Western Waste with the Commission, alleging that, during her employment, she had sustained injuries due to exposure to chemicals. She also alleged that, because of her work, she had acquired carpal tunnel syndrome. On May 17, 1994, Western Waste and Wilson executed a joint petition before the Commission, settling Wilson’s claims whereby Western Waste agreed to pay Wilson $12,500.00, plus attorney’s fees, as a full, complete and final payment and discharge of its liability to Wilson for any past or future injuries or medical expenses relating to her employment with Western Waste.
On February 22, 1995, or nine months after the settlement of her Workers’ Compensation claim, Wilson filed a personal injury suit against Western Waste and twelve other entities whom she alleged either generated or transported solid waste which was disposed of at the landfill. Wilson alleged that she sustained injury by virtue of exposure to toxic chemicals during the course of her employment at Western Waste. Wilson’s complaint asserted gross negligence, strict liability, and intentional infliction of emotional distress. Western Waste filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b) and 12(b)(6), arguing that the Commission had exclusive jurisdiction over Wilson’s claims against Western Waste and that Wilson had failed to state facts upon which relief could be granted.
In her response to the motion to dismiss, Wilson contended that her action was based upon the “intentional tort” exception to the exclusive-remedy doctrine of the Arkansas Workers’ Compensation Act, more particularly, Ark. Code Ann. § ll-9-105(a) (Repl. 1996). Wilson also filed a first amended complaint which added a claim of assault to the previous claims. Western Waste renewed its motion to dismiss, and reasserted that exclusive jurisdiction was with the Commission. The circuit court denied Western Waste’s motions to dismiss, and Western Waste filed its petition for writ of prohibition in this court, stating the trial court has no jurisdiction to proceed on Wilson’s tort claims since those claims were properly concluded before the Commission. We agree.
We first point out that, where the encroachment on Workers’ Compensation jurisdiction is clear, we have not hesitated to hold writs of prohibition are clearly warranted. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). When considering a petition for a writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nuco-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). In addition, this court has held that prohibition is only proper when the jurisdiction of the trial court depends on a legal rather than a factual question. Id.
We conclude that, because the issue in this case is one of law with no facts in dispute, Western Waste’s resort to writ of prohibition is appropriate. This court has held that the general rule is that an injured employee’s right to recover for job-related injuries is exclusively under the Workers’ Compensation Act, but when the employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy under the Act and proceed in a common-law tort action. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984). In other words, the employee has the option to pursue his or her claim for damages either in tort or under the Workers’ Compensation Act. However, once the employee makes that election, the employee may not later avail himself or herself of the remedy not chosen. Id.; see also Heskitt v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950).
In the present case, Wilson sought remedy under the Workers’ Compensation Act, claiming her injuries resulted from exposure to toxic chemicals during the time of her employment with Western Waste. As mentioned earlier, she recovered $12,500.00, plus attorney’s fees, and by agreement, the parties concluded that their settlement was a full, complete and final payment and discharge of Western Waste’s liability to Wilson for any past or future injuries or medical expenses. Because of Wilson’s decision to pursue her Workers’ Compensation remedy, we hold that as a matter of law, she is precluded from pursuing any tort action for the same claim.
We note Wilson’s argument that her Workers’ Compensation claim was limited only to an injury she sustained as a result of a chemical exposure which occurred on April 17, 1993. She suggests that other exposures prior or subsequent to the April 17 claim were the bases for her tort action and, therefore, she should not be precluded from electing to pursue these “other injuries” in tort. We dismiss Wilson’s argument because, as we pointed out earlier, in determining whether a trial court has jurisdiction in prohibition matters, this court is limited to the parties’ pleadings. Here, in its motion to dismiss below, Western Waste asserted that Wilson’s injuries from chemical exposure had been settled before the Commission, but Wilson never alleged in her complaint or in her response to Western Waste’s motion that her so-called new claims were different from the one(s) resulting from the April 17, 1993 occurrence which was (were) setded by the parties on May 17, 1994. However, even if we were permitted to consider the parties’ joint settlement agreement, which was not made a part of the pleadings, that agreement bears broad language, reflecting complete and total payment of all benefits due in the present or future for any injuries to Wilson, and it provided Wilson could pursue no further claims in any subsequent proceedings.
Because we hold Wilson’s prior filing of her claim under the Workers’ Compensation Act was an election of remedies barring any subsequent common law remedy, we grant Western Waste’s request for writ of prohibition. | [
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Per Curiam.
Appellant O.C. Willingham, by his attorney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed, but neither appellant nor his current attorney admit fault. As such, the motion for rule on the clerk does not state good cause for granting the motion as discussed in our per curiam, In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). If appellant’s current attorney, Charles L. Honey, will concede by affidavit that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied. | [
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Robert L. Brown, Justice.
Appellant Stacey Johnson appeals his conviction for capital murder and his sentence of death by lethal injection. He raises multiple bases for reversal, including an assertion that his identification in a photo lineup by the victim’s six-year-old daughter was inadmissible hearsay. We agree and reverse the judgment of conviction and remand for a new trial.
Carol Heath was brutally murdered in her duplex apartment in DeQueen on either the night of April 1, 1993, or the early morning hours of April 2, 1993. She was beaten, strangled, and had her throat slit while her two young children, Ashley, age six, and Jonathan, age two, were home. The facts regarding the murder and its aftermath are gleaned from pretrial and trial testimony. At approximately 6:45 a.m. on April 2, 1993, Rose Cassidy, the victim’s sister-in-law, knocked on the victim’s door but did not receive an answer. Because the door was unlocked, she entered and found Carol Heath’s partially nude body lying on the living room floor in a pool of blood. She ran across the street to call the police and then returned to check on her niece (Ashley) and nephew (Jonathan), whom she saw looking out the bedroom window. Cassidy testified that she asked Ashley what had happened. Ashley responded, according to Cassidy: “[S]omebody had broke in, and I said who, and she (Ashley) said a [bjlack man.” The victim was white.
Sergeant Keith Tucker of the DeQueen Police Department testified that he found Carol Heath’s body nude except for a t-shirt that had been pushed up around her neck. He stated that her body was located between a couch which was tilted up on its back legs and a coffee table which had apparently been moved toward the middle of the room. DeQueen Chief of Police James Smith arrived at the apartment later. He testified that when he pulled the t-shirt away from the victim’s neck, he saw that her throat had been slashed.
Dr. Frank Peretti, an associate medical examiner for the State Crime Laboratory, testified that Carol Heath’s death was caused by cutting her neck, strangulation, and blunt-force head injuries. He stated that her attacker left a four-inch by two-inch cut wound on her neck that went one-quarter inch into her spine. He observed that she had several bruises and abrasions on her head and face, that she had injuries on her hands and arms consistent with defensive wounds, that she had a bite mark on the nipple of her right breast and an abrasion on her left breast, and that there was a one-quarter-inch contusion on her right labia minora. Dr. Peretti could not conclude, based on the physical evidence, that she had been either sexually assaulted or raped.
Officer James Behling, a criminal investigator with the De-Queen Police Department, testified that he observed a pair of panties next to Carol Heath’s right thigh. He noted an area of lighter-colored liquid between and around the legs and below the genital area of the victim. An empty douche botde and an empty “Lifestyles” condom box were found in the bathroom sink.
On April 5, 1993, Kenneth Bryan found a purse in the woods between DeQueen and Horatio which he later realized belonged to the victim. He took Officer Behling to the location. Officer Behling examined the area and found a bloody pullover green shirt, a bloody white t-shirt, and a bloody towel. Lisa Sakevicius, an expert with the State Crime Laboratory’s trace evidence section, testified that hairs microscopically similar to the victim’s hair were found on all three of these items. She further testified that hairs retrieved from under the victim’s left breast, from the floor by the victim, and from the white t-shirt were of Negroid origin. Jane Parsons, a forensic serologist, testified for the State that no semen was found in connection with the victim. She admitted that the finding of semen would be unlikely, if the perpetrator used a condom and douched the victim.
DNA evidence was introduced at trial. Melisa Weber, a staff molecular biologist at Cellmark Diagnostics, conducted a Restriction Fragment Length Polymorphism [RFLP] test on the green shirt for the State and testified that to a reasonable degree of scientific certainty the blood matched that of Carol Heath. She also conducted a Polymerase Chain Reaction [PCR] test on several items, including the white t-shirt found in the park, a cigarette butt found in the green shirt, and hairs taken from the body of Carol Heath and near to where the body was located. With respect to the white t-shirt, Weber testified that the victim could not be excluded as the source of the blood and that the probability of this DNA having come from another Caucasian was 1 in 12,000. With respect to the cigarette butt and hairs, Weber opined that Johnson could not be excluded and that the probability that another African-American was the donor of the DNA in question was 1 in 250.
Officer Hayes McWhirter, an investigator with the Arkansas State Police, talked with the victim’s daughter, Ashley Heath, on the afternoon of April 2, 1993. Also present at the time was Cynthia Emerson, a supervisor with the Department of Human Services. Officer McWhirter made the following notes from that conversation and used these notes to refer to when he testified at the pretrial hearings and at trial:
Ashley stated her mother and I were on the couch when someone knocked on the door. She got up and opened the door. The picture No. 3, Stacey Johnson, is the one that came in the door. Ashley looked at six different pictures of black males. Mother likes Branson. He works at In Your Ear. The Black male asked where Branson was. The black male used a girl sounding name. He had on a black hat with something hanging down in the back. He had on a green shirt and sweater. When they were talking, the black male said he had just got out of jail. The black male was mad at mother for dating Branson. He had been over two other times, but it was a while or a long time ago. The black male had about as much hair as [McWhirter.] I saw them fighting. Then I saw mother laying on the floor. I saw the black male leave and he got up and he got in a brown truck, I think. I saw a knife and a gun. The brown truck was parked beside the house. Mother looked out the window. When he knocked, then she let him in. While mother was laying on the floor, the black male walked into the bath room. We were hiding in the closet. I came out the door to the bath room and the black male had a knife in his hand beside mommy. She was on the floor bleeding. After he left, I went in and saw momma bleeding. Jonathan looked at mommy twice. She was covered in blood. We went to bed and then this morning when someone knocked on the door, I was scared to open the door. When Rose screamed, I knew she saw mommy with blood all over her. Every time I saw the black male, he had clothes on.
Officer McWhirter testified that he handed Ashley a stack of seven photographs, and she picked Johnson out of the photo lineup twice. Johnson was subsequently arrested in Albuquerque, New Mexico.
Prior to trial, the trial court found Ashley incompetent to testify due to psychological trauma and, thus, unavailable. That finding is not an issue in this appeal. Johnson then moved in limine to exclude all statements made by Ashley to Officer McWhirter and Emerson. Johnson argued in his brief in support of the motion that the selection from the photo lineup was one of the statements to be suppressed because it was the product of Ashley’s reflection and deliberation and was made in response to questions during a time when Ashley showed no signs of excitement. After a hearing on whether her testimony as related by Officer McWhirter was hearsay, the trial court determined that Ashley’s statements to the police officer and Emerson met the criteria of excited utterances and were admissible as an exception to the hearsay rule. This ruling necessarily embraced Ashley’s selection of Johnson from the photo lineup on the two occasions. The trial court also ruled that Ashley’s statement to Rose Cassidy qualified as an excited utterance. At the same time, the court excluded statements made by Ashley to EMT personnel and to family even though these statements were made on the same day and prior to her statements to Officer McWhirter. The trial court determined that the statements were not reliable and did not qualify as excited utterances.
At trial, a jury found Stacey Johnson guilty of capital murder. Following the penalty phase, the jury found the crime to be aggravated by three circumstances: (1) Johnson previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; and (3) the capital murder was committed in an especially cruel manner. The jury unanimously agreed that there were no mitigating circumstances and sentenced Johnson to death by lethal injection.
We first address whether Ashley’s selection of Johnson’s photograph from a photo lineup qualified as an excited utterance.
I. Photo Lineup
At approximately 3:30 p.m. on the afternoon of April 2, 1993, Officer McWhirter, accompanied by Cynthia Emerson, a supervisor with the Department of Human Services, went to Ashley’s grandparents’ home to visit with Ashley. They took Ashley outside, and she told them what happened to her mother, which was related by Officer McWhirter at trial. After the statement, the police officer showed her seven photographs, one of whom was Johnson. She was told to look closely at the photographs. She went through the photographs carefully and selected Johnson’s picture. Officer McWhirter then retrieved the photographs, shuffled them, and showed them to Ashley a second time. He asked her to look carefully again. She went back through the pictures and again she selected Johnson as the culprit. The trial court permitted testimony of the selection by the police officer as an excited utterance. We conclude that allowing this hearsay testimony as an excited utter- anee was an abuse of discretion.
Rule 803(2) of the Arkansas Rules of Evidence defines the “excited utterance” exception to the hearsay rule: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This court has, on numerous occasions, applied this exception to cases involving the testimony of young children who may, or may not, eventually testify at trial. The basic requirements of the “excited utterance” exception are as follows:
First there must be an occasion which excites the declarant. Second, the [s]tatement must be uttered during the period of excitement and must express the declarant’s reaction to the occasion. In practice, these tend to merge together. If there was a sudden event which startled the declarant, his ensuing utterance will be assumed to be his reaction to the stimulus; if the statement appears to be excited, it will be assumed the occasion was exciting.
Smith v. State, 303 Ark. 524, 529-30, 798 S.W.2d 94, 97 (1990) (quoting 4 D. Louisell, Federal Evidence § 439 (1980)).
By allowing Officer McWhirter to testify about Ashley’s photo selection, Johnson contends he was denied his right to confront Ashley as guaranteed under the Sixth Amendment. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Suggs v. State, 317 Ark. 541, 879 S.W.2d 428, reh’g denied, 317 Ark. 547-A, 879 S.W.2d 432 (1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). Johnson’s counsel contends that he was foreclosed from asking Ashley questions such as: how was she able to see Johnson, how long did she see him, was her view blocked by furniture, were the lights on, and so forth.
The United States Supreme Court discussed the Confrontation Clause and exceptions to the Hearsay Rule in Idaho v. Wright, 497 U.S. 805 (1990):
In Ohio v. Roberts, we set forth a “general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the require ments of the Confrontation Clause. 448 U.S., at 65. We noted that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid. “First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . , the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ibid, (citations omitted). Second, once a witness is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls ivithin a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id., at 66 (footnote omitted); see also Mancusi v. Stubbs, 408 U.S. 204, 213 (1972).
Wright, 497 U.S. at 814-15 (emphasis added).
The description by Officer McWhirter of how Ashley studied the photographs and made her two selections of Johnson’s photograph smack of a deliberate and reflective act by the young girl and not of conduct we associate with spontaneity, excitement, or impulsiveness. Officer McWhirter testified at the omnibus hearing that he handed the photographs to Ashley “like a deck of cards.” He stated that she went through them once or twice and that he told her to make sure “she looked at them good.” She chose Johnson’s photograph, and Officer McWhirter repeated the exercise. The evidence was a critical cog in the State’s case, and the defense was completely thwarted in its ability to explore the matter through cross-examination of the declarant. This is not a case where a declarant is shown a picture by a family member and shrieks an identification. See United States v. Napier, 518 F.2d 316 (9th Cir.1975), cert. denied, 423 U.S. 895 (1975). We know of no case in any jurisdiction which stands for the proposition that a request to identify followed by a deliberate choosing of an offender from a lineup such as we have here qualifies as an excited utterance.
The testimony by Officer McWhirter of Ashley’s selection from the photo lineup should have been excluded as unreliable hearsay and as running contrary to Johnson’s right to confront the witnesses against him. We reverse the trial court on this point and remand for a new trial. Because many of the points raised in this appeal may occur again at retrial, we will address them. However, since we hold that the testimony of the photo lineup is inadmissible hearsay, we need not address the issue raised concerning the reliability of that lineup. There is the possibility that Ashley will be deemed competent to testify at a retrial of this matter, which would bring the lineup’s legitimacy back into play. Nevertheless, we view that contingency as too speculative for us to consider the point.
II. Points on Retrial
a. Ashley’s Statement to Officer McWhirter.
Though we consider the deliberate act of choosing from a photo lineup incompatible with the impulsive excitement and spontaneity associated with an excited utterance, we hold differ-endy with respect to Ashley’s verbal statements. We do so based on the descriptions of Ashley before and during her statement as provided by Cynthia Emerson and Officer McWhirter.
First, there are Cynthia Emerson’s revealing comments at the competency hearing which related to Ashley’s appearance and attitude on the afternoon of April 2, 1993. The conversation with the young girl occurred some nine hours after Ashley had been removed from the apartment where her mother lay covered in blood. After Emerson, Ashley, and Officer McWhirter went outside her grandparents’ house, Ashley jumped into Emerson’s lap. The police officer informed the young girl that he wanted to know what had happened to her mother, and Ashley “just started talking,” according to Emerson. She added: “She just rambled about — you know it was out of sequence a lot.”
Emerson’s colloquy with the prosecutor follows:
PROSECUTOR: Would it be fair to say that Ashley had control over that statement you got?
EMERSON: Definitely, definitely.
PROSECUTOR: You said earlier that she had somewhat of an obsession to tell this?
EMERSON: Right. It’s like — I don’t know. Like some kids have a — something they want to get out. It’s almost like an explosion. She just completely — we didn’t have any chance to really ask questions....
At the later omnibus hearing, Emerson testified that Ashley “rattled” to the police officer when telling her story and that it was “very fast pace[d].” On cross-examination, Emerson stated that Ashley became more excited as she was relating her story. At trial Emerson testified:
EMERSON: You know, adults, you know, we put things in order. Kids, when they’re upset or nervous about something, they just talk and, you know, it’s not in sequence.
PROSECUTOR: Okay. And you’re saying that’s the way Ashley’s story was?
EMERSON: Oh, yes. She was very eager to tell the story, in my opinion.
PROSECUTOR: Was she upset?
EMERSON: She was very upset and hyper, but it was like when she was telling us the story, she was just focused in on what was happening. She wasn’t really aware that we were there. I mean she was telling us this story, but it wasn’t a story to her. It was just something she needed to say.
Officer McWhirter’s description of Ashley followed a similar theme. At one of the pretrial hearings, he responded affirmatively to the question: “She just unloaded on you?” At trial, he described Ashley at the time as “scared.” He asked Ashley what had happened the previous night and then described her response:
[T]he next thing I knew, she just started talking, spontaneous — I mean she started talking. She would go into one thing, she just kept talking and never stopped, and during the time she was talking she would ask me questions, which I wasn’t going to answer, so we just let her keep talking until she finished.
Thus, you had a six-year-old child who from two reports was hyperactive, scared, and excited when she told about the murder of her mother on the afternoon after the homicide. In discussing the criteria we weigh in considering the excited-utterance exception, we have looked in the past to a summary set out by the Eighth Circuit Court of Appeals in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):
The lapse of time between the startling event and the out-of- court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that [the declar-ant’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.
Id. at 86 (internal citations omitted) (quoted in Smith v. State, 303 Ark. 524, 531, 798 S.W.2d 94, 98 (1990)).
This court further took note in the Smith case of the fact that the trend was toward expansion of the time interval after an exciting event and that some courts are more liberal in doing so when the declarant is a child. Smith v. State, 303 Ark. at 530, 798 S.W.2d at 97 (citing D. Binder, Hearsay Handbook § 2.03 (1983)). This court has followed that trend. See, e.g., Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994) (excited utterance made the next morning by a six-year-old informing parent of sexual abuse the previous night); Suggs v. State, supra (excited utterance made by boys 24 to 30 hours after having witnessed their mother being stabbed 144 times); Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991) (excited utterance made the day after the rape by twenty-three-year-old mentally retarded victim with the mental capacity of a six-year-old); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), reh’g denied, 306 Ark. 374-A, 818 S.W.2d 951 (1991) (excited utterance made when two-and-a-half-year-old child awoke from a nightmare and related story of sexual abuse); Smith v. State, supra (excited utterance made the next morning by a three-year-old after witnessing a murder the previous afternoon). In light of the authority, we do not view the statement by Ashley made more than nine hours after her mother’s body was discovered and she was removed from the apartment as inconsistent with the spontaneity and impulsiveness associated with an excited utterance.
The trial court also dubbed Ashley’s statement to Rose Cassidy concerning a black man as the culprit as an excited utterance. But the court then refused to allow various comments by Ashley made prior to the conversation with Officer McWhirter and Cynthia Emerson:
— To EMT Archie Johnson about 7:00 a.m. that Ashley and her mother heard something in the house and that her mother got up to see what it was and had fallen.
— To the victim’s sister, Melissa Cassidy during a 45-minute conversation that a black man broke in and killed her mother.
— To her grandmother, Arlene Heath, over the course of the day that she heard someone come in the apartment and saw him sit on the couch playing with a gun, that she hid by the television set in the hall and saw her mother lying in blood, that the man was bald but also had a black hat, that he was wearing blue jeans and boots, that he had on black pants and a green jacket and a black shirt with red and orange designs, that he had a gold ring with glass in it and wore a tie, and that he was chunky.
The trial court gave no explanation for why it found these statements unreliable and not excited utterances. A reasonable explanation would be that a statement made during a 45-minute conversation or random comments made during the course of the day do not pass muster. Certainly, the foundation laid by Cynthia Emerson and Officer McWhirter regarding Ashley’s excited demeanor when telling her story was not similarly laid for the statements made to Archie Johnson, Melissa Cassidy, and Arlene Heath.
We conclude that the trial court did not abuse its discretion in allowing Officer McWhirter to testify to what Ashley told him. Accordingly, we hold that at the retrial of this matter Ashley’s description of the crime as related to Cynthia Emerson and Officer McWhirter, other than her identification of Johnson from the photo lineup, is admissible as an excited utterance and does not violate the Confrontation Clause.
b. Testimony of Drug Trafficking and Rule 404(b).
Johnson moved in limine to prevent the State’s witnesses from mentioning any connection between him and drug trafficking. The motion was denied. Johnson raised the issue again prior to trial, and it was again denied. At trial, Shawnda Helms testified as part of the State’s case that Johnson approached the victim and her on two occasions. The first occasion was on February 1, 1993, during a social gathering at the victim’s house: “[H]e called us into the kitchen and asked us if we knew anybody or anyway that we could help transport some kilos because he needed to have them transported, and then he asked me and Carol if we would go out with him and we told him no, because we didn’t date [b]lack guys.” Helms testified that she understood “kilos” to mean “cocaine.” The second occasion was on February 15, 1993, at an establishment named “In Your Ear”: “Stacey called us over there and asked us if we had thought of anybody who could help him transport them (kilos) and we told him no, [a]nd then he asked Carol again if she would go back out with him — if she would go out with him, and she said no.” Helms testified that when they refused to help with the cocaine, Johnson “looked like he was mad. He was pretty upset with our answer.”
Johnson’s argument on appeal is twofold. First, he contends that the statements are inappropriate “propensity” evidence under Ark. R. Evid. 404(b). Secondly, he maintains that even if the statements were relevant, their probative value is substantially outweighed by the danger of unfair prejudice under Ark. R. Evid. 403. He argues that the drug references did nothing but “impugn his character and improperly sway the jury’s mind against him.” The State counters that Johnson’s requests about transporting cocaine are excepted from Rule 404(b) because they established knowledge of the victim. It can also be garnered from the testimony of Shawnda Helms that refusal to transport drugs as well as the refusal to date were motives for the slaying.
We agree with the State that the evidence was permissible. Both knowledge and motive are exceptions to Rule 404(b). Nor do we view the evidence as unfairly prejudicial under Rule 403. The relevance of circumstances which tie the perpetrator to the victim and raise a possible motive for the killing is patently obvious. The fact that that knowledge came about in the context of an attempted drug deal should not be grounds for excluding testimony about the proposed transaction.
There is also the fact that Johnson did not request a limiting instruction that the drug testimony not be considered for the purpose of finding Johnson to be a bad man. To be sure, refusal to request such an instruction could well have been a matter of trial strategy on defense counsel’s part. Yet, an instruction of that kind would have directed the jury’s attention away from Johnson’s character and toward the motive and knowledge exceptions.
There was no error in allowing the drug testimony.
c. DNA Testimony.
The two sides waged a fierce battle over the admission of statistical probabilities with respect to PCR testing. Johnson presented testimony by Dr. Mark Crew, a molecular biologist, that the underlying databases used by Cellmark Diagnostics for PCR testing were unreliable because they were insufficient in size. In his opinion, the databases were unreliable because they did not include samples taken from the Sevier County gene pool.
Dr. Charlotte Word, a molecular biologist with Cellmark, admitted that the databases employed for the PCR testing took samples from major metropolitan areas rather than from Arkansas. But she also stated that the databases were tested and determined to be in Hardy-Weinberg Equilibrium, meaning that the frequency of certain types of genes in the general population is adequately reflected in the databases. When this equilibrium is attained, it is then possible to predict the frequency, in terms of the entire population, of how common it would be to find a combination of the different genes in one person.
This court recently decided this issue against Johnson. See Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). In Moore, we stated:
The trial court also correctly determined that any challenge to the conclusions reached by the state’s expert, including the statistical probability of whether the test results constituted a match, would appropriately be made at trial, by cross-examination of the state’s experts and presentation by the defendant of his own experts to express differing opinions about the results of the FBI tests and statistical probability of a match.
Moore, 323 Ark. at 547, 915 S.W.2d at 294 (emphasis added). Furthermore, experts for both Johnson and the State agreed that Cellmark provided “falsely conservative” statistical probabilities, a factor that this court has afforded some weight in assessing whether databases were in Hardy-Weinberg Equilibrium. See Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
Johnson all but concedes that the battle of the experts over statistical probabilities is a matter for litigation and cross-examination. Nevertheless, he asks this court to revisit the issue and consider excluding the DNA tests. We decline to do so. There was no error in allowing this evidence to be presented to the jury.
d. Intent to Date a Black Man.
The State extracted statements from four witnesses that Carol Heath did not date black men or entertain black men in her home. In response to this evidence, Johnson attempted to introduce the testimony of Cynthia Johnson, who worked with the victim at DHS, that Carol told her on Wednesday, March 31, 1993, that Doyle Green, an African-American, had asked her for a date. Green was an auditor who lived in Litde Rock but was in DeQueen apparently doing some work for the local DHS office. Cynthia Johnson also testified that Green was the only one of three Little Rock auditors who decided to spend the following night, April 1, 1993, in DeQueen, thus creating the inference that he could have been the murderer. She admitted, however, on cross-examination that she did not know Carol Heath on a personal basis and had no idea whether she actually dated Doyle Green.
The trial court properly found this testimony to be unduly speculative and properly excluded it. Evidence that does no more than create an inference or conjecture of another’s guilt is inadmissible. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993) (citing State v. Wilson, 367 S.E.2d 589 (N.C. 1988)). There was no abuse of discretion.
e. Narrounng of Offenses.
This court has laid to rest the argument that an unconstitutional overlapping occurs between our capital murder statute and our first-degree murder statute. The argument put forth by Johnson was answered recendy in Nooner v. State, 322 Ark. 87, 107, 907 S.W.2d 677, 687-88 (1995):
Nooner argues that the definition of capital murder does not sufficiendy narrow the crime for which the death penalty can be imposed. He specifically alludes to overlap between definitions of capital murder and first degree murder, which we have already discussed. The United States Supreme Court has held that the required narrowing of crimes susceptible to the death penalty may occur at the penalty phase of the trial. This court has previously held that our statutes pass the narrowing requirement by limiting the death penalty to crimes involving sufficient aggravating circumstances. There is no merit to Nooner’s contention. (Citations omitted.)
See also Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). The same holds true in this case. Johnson’s argument is meritless.
f. Especially Cruel as an Aggravating Circumstance.
Johnson contends that the “especially cruel” aggravating circumstance, codified at Ark. Code Ann. § 5-4-604(8) (Repl. 1993), is vague and overbroad and violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, section 9 of the Arkansas Constitution. We have previously decided this “vague and overbroad” argument against an appellant, and in doing so we stated:
The previous “especially heinous, atrocious, or cruel” aggravating circumstance was declared unconstitutional by this court because it was so vague that it violated the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. See Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). The legislature rewrote the aggravating circumstance in 1991 and based the statutory definitions of “especially cruel manner” and “especially depraved manner” on the Arizona Supreme Court’s limiting interpretation of its “especially heinous, cruel or depraved” aggravating circumstance that had been found by the United States Supreme Court to pass constitutional muster.
Greene v. State, 317 Ark. 350, 360-61, 878 S.W.2d 384, 390 (1994) (citing Walton v. Arizona, 497 U.S. 639 (1990)). See also Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). Johnson has advanced no argument that persuades us to interpret the Arkansas Constitution in a contrary manner.
Nor can there be any doubt that evidence abounded that the murder was perpetrated in an especially cruel manner. The considerable damage to the body of the victim is testimony to that fact. There were, too, the defensive wounds, the circumstantial evidence of rape, and the bloody fingerprint of the victim found on the linen closet which suggested Carol Heath did not die immediately.
g. Aggravating Circumstances — Narrowing the Class.
Johnson contests the avoiding-arrest aggravator in this case and urges that all murders could arguably have been committed to avoid arrest. As a consequence, he contends that this aggravating circumstance did not effectively narrow the class of persons eligible for the death penalty for the jury’s purposes.
This precise overbreadth argument has previously been rejected by this court, and Johnson cites no authority that persuades us to change our position. See Coulter v. State, supra. Johnson further argues that the statute is unconstitutional in that it allows for a finding of aggravating circumstances at a lesser standard than “beyond a reasonable doubt.” This argument is belied by the plain language of Ark. Code Ann. § 5-4-603 (Repl. 1993), which requires findings of aggravators beyond a reasonable doubt and by the penalty-phase verdict form returned by the jury in his case.
The State argues that the murder was committed for the purpose of eliminating Carol Heath as a victim-witness in a battery trial or as a prosecutrix-witness in a rape trial. This is evidenced, according to the State’s theory, by his attempts to “clean up” the victim and eliminate circumstantial evidence of rape, and his immediate departure to Albuquerque, New Mexico after the crime.
We need not address this argument. First, there is no assurance that this particular aggravator will be submitted on retrial. But, in addition, there were two other aggravating circumstances found by the jury which clearly outweighed the jury’s finding of no mitigating circumstances. Hence, the error, if any, was harmless. See Ark. Code Ann. § 5-4-603(d) (Repl. 1993). Accord Kemp v. State, supra.
h. Victim-Impact Testimony.
During the prosecution’s closing argument at the penalty phase, he made several statements that Johnson classifies as “victim impact” evidence: “I sure hope you won’t forget the right that Carol Heath had to life, the right that she had to learn and grow and love her two children and that right they had to know and love their mother” ... “The manner in which Carol Heath was left with those two children justifies the death penalty” ... “Punish the man who took away Carol Heath’s rights to know and love and watch Ashley grow up and marry.... And watch Jonathan grow up and to struggle with Jonathan, to do things with him and see him grow up” ... “[Carol’s parents] have rights. They’ve lost a precious daughter.”
Johnson argues that the victim-impact statute, Ark. Code Ann. § 5-4-602(4) (Repl. 1993), does not give sufficient guidance to the judge and jury as to what comprises victim-impact evidence, and as such it violates the Eighth and Fourteenth Amendments to United States Constitution and Article 2, section 9 of the Arkansas Constitution. He also attacks the relevancy of the prosecutor’s statements to the penalty phase and claims that § 5-4-602(4) has impermissibly been applied retroactively and, thus, is an ex post facto law.
The simple answer to Johnson’s argument is that arguments of counsel are not evidence, and the trial court instructed the jury accordingly. See AMCI 2d 101(e). Furthermore, there was no objection or request for an admonition at the time the prosecutor made these statements. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). But, in addition, these issues were decided in Nooner v. State, supra, against the appellant. In Nooner, this court held: “{B]y expanding the scope of permissible evidence during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance. We hold that permitting this testimony . . . did not constitute an ex post facto law.” Nooner, 322 Ark. at 109, 907 S.W.2d at 689.
In Nooner, we also upheld the underlying constitutionality of victim-impact testimony. See Nooner, 322 Ark. at 322-23, 907 S.W.2d at 688-89 (citing Payne v. Tennessee, 501 U.S. 808 (1991)). As was the case in Kemp v. State, supra, Johnson does not put forth an argument that would convince this court to interpret the provisions of the Arkansas Constitution in a different manner.
Reversed and remanded.
Dudley, Newbern, and Roaf, JJ., concur in part; dissent in part.
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BRADLEY D. Jesson, Chief Justice.
The issue in this case is whether we will prevent a trial judge from exercising his or her contempt authority when a defendant appears in court under the influence of alcohol. The appellant, Richard Burradell, appeared in Rogers Municipal Court for a plea hearing. He had been drinking to such an extent that he smelled of alcohol and registered .13 on a portable breathalyzer test. Municipal Judge R. Douglas Schrantz cited Burradell for contempt and sentenced him to two days in jail. Burradell appealed to Benton County Circuit Court and, after a de novo bench trial, was again adjudged guilty of contempt. We affirm, and hold that it was within the inherent authority of the municipal judge to punish Burradell for contempt.
The facts, in greater detail, are as follows. On March 3, 1995, Burradell appeared in Rogers Municipal Court for a pretrial hearing. He had been charged with DWI 1. The purpose of his appearance was to enter a guilty plea, pursuant to an agreement with the prosecutor. Before entering the courtroom, Burradell was “screened” by a representative of the Ozark Guidance Center. The representative noticed that Burradell smelled of alcohol. A police officer was summoned to administer a portable breathalyzer test and Burradell registered a .13 blood alcohol level. Burradefl’s attorney learned what had transpired and he informed Judge Schrantz. The judge summarily found Burradell in contempt and sentenced him to two days in jail.
The contempt finding was appealed to circuit court. Burradell contended that, in the absence of any disruptive behavior on his part, he could not be held in contempt for simply appearing in court under the influence of alcohol. The State conceded that, other than smelling of alcohol and registering a .13 on the breath test, Burradell displayed no outward signs of intoxication. After a hearing, the circuit judge found that Burradell’s condition displayed a lack of regard for the court, eroded the solemnity of the proceedings, potentially impaired the proceedings, and demonstrated disrespect. Burradell was found guilty of contempt and sentenced to twelve hours time served. This appeal followed.
First, we address Burradell’s argument that the municipal court had no power under Ark. Code Ann. § 16-10-108(a) (Repl. 1994) to hold him in contempt. That statute reads as follows:
Every court of record shall have the power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
(1) Disorderly, contemptuous, or insolent behavior committed during the court’s sitting, in its immediate view and presence, and direcdy tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance, willfully offered, by any person to the lawful order or process of the court; and
(5) The contumacious and unlawful refusal of any person to be sworn as a witness and, when so sworn, a similar refusal to answer any legal and proper interrogatory.
Burradell claims that the Rogers Municipal Court is not a “court of record” as required by the statute. That argument is presented for the first time on appeal, so we will not consider it. See Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). He also contends that his behavior did not fall within any of the five categories listed in § 16-10-108(a). It is not necessary for us to address that contention. A court has inherent power to punish contemptuous behavior committed in its presence, without regard to the restrictions imposed by § 16-10-108(a). Summary punishment for contempt committed in the presence of the court is an inherent power reserved to the judiciary, and cannot be abridged by legislation. See Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).
The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings. James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964). It is inevitable that, if a defendant is allowed to appear at a court proceeding in a state of intoxication, the authority and dignity of the court will suffer. Such behavior is, standing alone, a mark of disrespect to the court and the legal process.
An act is contemptuous if it interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). The power of contempt is available to uphold public confidence in the majesty of the law, Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993), and to preserve the power and dignity of the court. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). These interests are offended by a defendant who shows up for a plea hearing under the influence of alcohol. Public confidence in the majesty of the law would be sorely tried were a court to turn a blind eye to a defendant who appeared in court smelling of alcohol and intoxicated to the extent we have in this case. Further, the validity of the proceedings themselves could be called into question by the participation of an intoxicated defendant. Finally, we have recognized that one of the values of a court’s exercise of its criminal contempt power is its deterrent effect on others. Ward v. Ward, 273 Ark. 198, 617 S.W.2d 364 (1981). A contempt citation such as the one issued against Burradell lets others know that such behavior will not be tolerated by the court.
The appellant claims that he intended no disrespect by his actions. His argument is stated best on page twenty-three of his brief:
The worst that the defendant did in the instant case is take a few snorts of booze to calm his nerves before court. This was bad judgment to say the least, especially in light of the underlying offense of DWI, but it certainly did not amount to a defendant showing contempt or disrespect to the judge or the court.
The appellant cites three Arkansas cases in support of his argument. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991); Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973); Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991). However, those cases are not applicable because they involve the effect of intoxication on a defendant’s competence or the voluntariness of his actions. Likewise, the cases cited by the appellant from other jurisdictions are distinguishable, although they involve similar fact situations. In Cameron v. State, 102 Md. App. 600, 650 A.2d 1376 (1994), it could not be conclusively determined that the appellant had been under the influence of alcohol while in the court’s presence. In Commonwealth v. DiGiacinto, 324 Pa. Super. 200, 471 A.2d 533 (1984), Pennsylvania law required “misbehavior...obstructing the administration of justice” before a contempt citation could be issued. In Bethard v. District of Columbia, 650 A.2d 651 (D.C. 1994), a charge of contempt could only be supported by a finding of a willful attempt to show disrespect.
We have empowered our judges with greater authority to preserve and protect the dignity of their courtrooms. This is evidenced by the fact that we have affirmed contempt citations even where the appellants argued that they did not intend by their actions to show contempt or disrespect. In Ward v. Ward, supra, the appellant was jailed for contempt for refusing to pay child support as ordered. We recognized that his refusal to pay was based on a misunderstanding of the law rather than a contemptuous attitude. Nevertheless, we upheld the contempt citation, although we took the appellant’s lack of contemptuous intent into consideration and modified his sentence. In Garner v. Amsler, 238 Ark. 34, 377 S.W.2d 872 (1964), two attorneys represented to the trial court that the jury was “stacked” against them. When the claim turned out to be groundless, the attorneys were held in contempt of court. We recognized that a sentence for contempt is not intended primarily as a means for punishing carelessness or bad judgment, but we did not absolve the appellants of contempt. Instead, we reduced the sentences imposed on them. The Ward case and the Amsler case embody the principle that criminal contempt is punished to protect the dignity, integrity, and authority of the courts, regardless of the actor’s subjective intent.
Affirmed.
Dudley, Newbern, and Roaf, JJ., dissent.
Apparently this screening is customary in Rogers Municipal Court when DWI defendants are to appear before the judge. The record does not reveal what form this screening takes. It seems the defendants are, at least, closely observed. | [
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DAVID Newbern, Justice.
Demetrius Jones appeals the order of the Pulaski County Circuit Court denying his motion to transfer charges against him to the Juvenile Division of the Chancery Court. Mr. Jones was charged with first-degree murder. The information alleged that, on September 17, 1994, Mr. Jones “unlawfully, feloni-ously, and with a purpose of causing the death of another person, did cause the death of Michael Bly, Jr.” Mr. Jones was sixteen years old at the time he allegedly committed the offense.
In his motion, Mr. Jones stated that he had no prior criminal convictions in Circuit Court. In its response, the State opposed the transfer on account of the serious and violent nature of the offense charged, the failed attempts at rehabilitating Mr. Jones, and Mr. Jones’s criminal history in the Juvenile Division.
At a hearing on the motion, Mr. Jones presented the testimony of his aunt, Ms. Lee Gertie Williams, who testified that Mr. Jones is a “good person” and “had good character and always did what I said.” Ms. Williams indicated that Mr. Jones had been placed in special education courses at Sylvan Hills High School. Mr. Jones also presented the testimony of Mr. Carvil Strong, who had counseled Mr. Jones during his stay at the Alexander Youth Service Center. Mr. Strong testified that Mr. Jones would have good prospects for rehabilitation if he were able to improve his educational skills. Ms. Mary Anthony, a case manager at Alexander Service Center, also testified on Mr. Jones’s behalf. She testified that she had performed an educational evaluation of Mr. Jones in November 1994 and that he tested on a second-grade level.
The State presented the testimony of Mr. Sean O’Nale, a deputy with the Pulaski County Sheriff’s Office. Deputy O’Nale testified that he investigated a homicide on September 17, 1994. The victim was discovered in a van with a fatal gunshot wound, and Mr. Jones was identified as the suspect and subsequently arrested. The Circuit Court heard an audio recording of the statement that Mr. Jones made following his arrest. In the statement, Mr. Jones revealed that he had pointed the gun at the van containing the victim and that the gun “went off.” The State’s other witness was Mr. David Adams, a sergeant with the Pulaski County Sheriff’s Office, who testified that Mr. Jones displayed limited reading and writing abilities.
As Mr. Jones was sixteen years old at the time he allegedly committed the offense, the Circuit Court and the Juvenile Court had concurrent jurisdiction, and the prosecutor was authorized to charge Mr. Jones in either court. Ark. Code Ann. § 9-27-318(b)(l) (Supp. 1995). In reaching its ruling, the Circuit Court was required by statute to consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e)(l)-(3) (Supp. 1995).
The Circuit Court’s decision to retain jurisdiction over a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Supp. 1995). We will not reverse the Circuit Court’s order unless it is clearly erroneous. Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996).
The Circuit Court was not required to give equal weight to each of the three factors. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). The serious and violent nature of the offense is a sufficient basis on which the Circuit Court may deny the transfer motion and try the juvenile as an adult. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). The information alone is sufficient evidence of the serious and violent nature of the crime to support an order denying the motion to transfer. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).
The evidence presented showed that Mr. Jones was accused of committing first-degree murder, a violent and serious offense classified as a Class Y Felony, and that he allegedly used violence in the commission of that offense. The evidence also permitted the Circuit Court to conclude that Mr. Jones, considering his history in the juvenile system, lacked sufficient prospects for rehabilitation. Finally, in light of the fact that Mr. Jones is currently eighteen years old, it is not possible for him to be committed to a juvenile facility. Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Given these circumstances, the Circuit Court did not err in denying Mr. Jones’s motion to transfer.
Affirmed.
Roaf, J., concurs. | [
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PER CURIAM.
Basilio and Rogelio Reyes, by their attorney, have filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and that it was no fault of the appellants.
This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellants’ motion must be denied.
If the appellants’ attorney will file a motion and affidavit in this case accepting full responsibility for not timely filing the transcript within thirty days from the date of this per curiam, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
The present motion for rule on the clerk is denied. | [
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DAVID Newbern, Justice.
Robert Lynn Gordon and John Michael Priest were tried jointly for attempted capital murder and manufacture of a controlled substance. Mr. Gordon was convicted of both offenses and sentenced to 35 years’ imprisonment and a $10,000 fine. Mr. Priest was convicted of manufacture of a controlled substance and was given a four-year suspended sentence. Both have appealed, and their appeals have been consolidated. We affirm Mr. Gordon’s conviction as we reject his sole point of appeal having to do with alleged error resulting from improper limitation of cross-examination of a State’s witness. We reverse and dismiss the conviction of Mr. Priest because we concur in his contention that the evidence against him given by an accomplice was not corroborated.
On Thursday, August 18, 1994, the Marion County Sheriff’s office received a report concerning the discovery of a large marijuana plot. Investigator Carr was the first to respond to the call. Upon entering the marijuana field, Mr. Carr noticed a strand of monofilament fine, a type of fishing fine, running to a piece of pipe. Suspecting a trap-gun, he attempted to relay his discovery to other approaching officers. While attempting to radio the other officers, he set-off a second, unseen trap-gun which was loaded with buckshot. The resulting blast struck Mr. Carr’s leg. Although severely wounded, he managed to crawl out of the field. He was found by other officers and rushed to the hospital. The officers recovered 402 marijuana plants and two trap guns constructed of galvanized pipe and rat traps.
The State’s primary witness was Kenneth Godat, an accomplice. According to Mr. Godat, the marijuana plot belonged to Mr. Gordon and Mr. Priest. Mr. Godat testified that he heard the two men discussing the necessity of keeping law enforcement officials out of the plot, and that he saw the components for the trap-guns on a nearby picnic table immediately after the discussion. He claimed that he saw a trap-gun, identical to the ones found in the marijuana plot, at the cabin shared by the two men. Mr. Godat also stated that he transported the two men to the plot on the day the trap-guns were installed. The other evidence produced by the State consisted of testimony from individuals who stated they knew the marijuana patch belonged to Mr. Gordon, that he talked of protecting it with booby-traps, and that he had a partner, although the partner was not named.
Robert Lynn Gordon Scope of cross-examination
Bill Beach, one of the investigating officers, testified he took fingerprints from a number of the suspects and submitted them to the State Crime Laboratory for comparison to prints found on the trap-guns. When questioned about the result, he stated the test was inconclusive. Officer Beach testified a laboratory technician told him “That he had found one, partial latent print on one of the [trap-guns] and that... as a result of his comparison to the known prints that were submitted, the print was not suitable to identify any potential suspect, there were not enough points of identification to identify one person.” On cross-examination, Mr. Gordon’s counsel began questioning Officer Beach about a conversation Mr. Beach had with the fingerprint examiner, Mr. Turbyfill, concerning which suspect the fingerprints most closely matched. The State’s objection was sustained.
Mr. Gordon’s counsel asked to make a proffer consisting of his allegation that Officer Beach would testify that Mr. Turbyfill said that he found five points on the latent print which matched the fingerprint of Brad McLean and that Mr. Turbyfill had stated the investigator should take a “hard look” at Mr. McLean as a suspect. The Trial Court stated that, if a statement by Mr. Turbyfill were admissible, Mr. Turbyfill would be the proper witness but he doubted the testimony would be admissible “under any stretch of the rule of evidence.” Obviously, the Trial Court considered the testimony of Mr. Beach about what Mr. Turbyfill had told him to be irrelevant and, at best, subject to a hearsay objection on the part of the State. We note that in Davis v. State, 319 Ark. 892 S.W.2d 472 (1995), we held that a police officer’s testimony about a scientific test he did not conduct was not admissible.
On appeal, Mr. Gordon contends that Officer Beach’s statement concerning the inconclusive nature of the test was misleading. He submits that he should have been allowed to elicit testimony from Officer Beach that, even though inconclusive, the fingerprint test implicated one of the other suspects and not Mr. Gordon. Mr. Gordon contends the Trial Court erred by limiting his cross-examination of a State’s witness and such error amounted to a denial of his Sixth Amendment right of confrontation.
The right of confrontation provides two types of protection for defendants in criminal cases: the right to face those who testify against them and the opportunity to conduct effective cross-examination. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). The right to cross-examine is, however, not unlimited, and a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). We will not disturb the discretion of the trial court upon review in the absence of a showing of abuse. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994).
To determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to appellant. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Bowden v. State, supra. Prejudice is not presumed and we will not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
In his argument, Mr. Gordon cites three cases in support of his point that his right of confrontation was erroneously curtailed. The cases are U.S. v. Campbell, 845 F.2d 782 (8th Cir.1988), U.S. v. Ferguson, 776 F.2d 217 (8th Cir. (1985), and Bowden v. State, supra. In each of those cases convictions were affirmed, and each of the opinions emphasizes the wide discretion a trial court has in limiting cross-examination. The opinion in the Ferguson case makes the point that “A violation of the confrontation clause occurs only where the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury’s decision.”
Mr. Gordon has failed to show either an abuse of the Trial Court’s discretion or any prejudice resulting from the restriction. He was allowed to question the State’s witnesses concerning the existence of other suspects. Mr. Gordon’s former spouse testified that Brad McLean had been involved in growing marijuana with Mr. Gordon. Evidence that the fingerprint somewhat matched that of Mr. McLean would have added litde to Mr. Gordon’s attempt to show that others were suspects and might have been involved in the growing of the marijuana.
We cannot say that, absent the cross-examination Mr. Gordon’s counsel wished to conduct, any implication was left with the jury that it was Mr. Gordon’s fingerprint found on the trap-gun. Nor has Mr. Gordon given us any citation to any authority which would make an apparendy hearsay statement, of marginal, if any, relevance, admissible because the prosecution had “opened the door.” In Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), we rejected a similar argument where the State had offered evidence that a murder victim was reputed to have been a peaceful person and the defendant wanted to offer evidence of specific acts of violence committed by the victim. We upheld the Trial Court’s refusal to allow the evidence and said, “The fact that the State may have first ‘opened the door’ regarding the victim’s character does not overcome the problem of relevancy under these circumstances.”
The research effort displayed in the concurring opinion will undoubtedly be helpful in future cases in which there is a “fire” to be fought with a “fire.” In the circumstance presented here, however, the door opened by Officer Beach’s testimony resulted in no prejudice whatever to Mr. Gordon.
We affirm the judgment as to Mr. Gordon.
John Michael Priest Sufficiency of the evidence
Mr. Priest contends the Trial Court should have granted his motion for directed verdict because the State failed to corroborate accomplice testimony as to his involvement in the manufacture of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (b) (Supp. 1995).
Arkansas Code Ann. § 16-89-111 (e)(1) (1987) provides:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, other evidence independently establishes the crime and tends to connect the accused with its commission. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994); Daniels v. State, supra.
The corroborative evidence must be substantial evidence, which is stronger evidence than that which merely raises a suspicion of guilt. Hogue v. State, supra. Circumstantial evidence qualifies as corroborating evidence, but it, too, must be substantial. Id. But corroboration need not be so substantial in and of itself as to sustain a conviction. Id. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983).
The State contends it produced sufficient corroborating evidence through the testimony of Doug Sauers. Mr. Sauers testified he had a conversation with Mr. Gordon after Investigator Carr was wounded. According to Mr. Sauers, Mr. Gordon told him that he, Gordon, would have had plenty of marijuana if the victim had not messed things up. Mr. Sauers stated that Mr. Gordon talked about the patch as “ours” indicating that he had a partner. Mr. Sauers unequivocally denied that Mr. Gordon ever mentioned the name of his partner.
Other witnesses testified they thought Mr. Gordon had a partner, but no name was mentioned. Mark Fisk testified he went to Mr. Priest’s cabin several times and observed people smoking marijuana. He also testified he heard Mr. Priest and Mr. Gordon say that Investigator Carr got what he deserved. Mr. Fisk said he did not know anything about who was growing marijuana.
The evidence produced by the State, other than the testimony of the accomplice, does no more than place Mr. Priest in a location where marijuana was used and the crime against Mr. Carr was discussed. That is not sufficient to satisfy the requirement of§ 16-89-lll(e)(l).
The judgment against Mr. Priest is reversed and the case is dismissed.
Brown, J., concurs. | [
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ANDREE Layton Roaf, Justice.
This appeal involves the construction of a 1922 deed by which the appellants, heirs and grantees, obtained a non-participating royalty interest in the mineral rights to property located in Columbia County, Arkansas. The appellees own the property, including the mineral rights. On appeal, the appellants claim that the Columbia Chancery Court erred when it found that they owned a V16 instead of a V12 royalty interest in the oil and gas produced pursuant to a lease executed by the appellees in 1992. We find no error and affirm.
By the execution of a release deed dated August 10, 1922, Claude and Helen Smith conveyed to I.L. and J.P. Cooper a nonparticipating royalty interest in the mineral rights in some 200 acres of land located in Columbia County, Arkansas. The Smiths subse-quendy conveyed ownership of this property in 1922 and 1927 to T.A. and Alice E. Monroe. The property is currendy held by appellees, the Monroe Family Trust, with Worthen Trust Company, Inc. and Anne H. Monroe as trustees, and T. Archie Monroe (“Monroe family”). Over the years, the Coopers devised or conveyed their non-participating royalty interest to various individuals, twelve of whom are the appellants (“Cooper heirs”).
In 1992, the Monroe family executed oil and gas leases of the property to a third party. The new leases provided that the Monroe family’s reserved royalty interest would be V6 of the gross production of the wells on their property.
The Cooper heirs in essence contend that the 1922 deed granted them a V2 interest in whatever royalty interest was retained by the Monroe family. Accordingly, the Cooper heirs asserted that they are entitled to V2 of the x/b royalty interest retained by the Monroe family in the 1992 leases, or V12 of the total royalties from the wells. The Monroe family disputed this claim, and contended that the 1922 deed granted the Cooper heirs only a Vis royalty interest in the wells regardless of the interest retained by the Monroe family, and that the Cooper heirs’ V16 interest was thus unaffected by the 1992 leases.
The oil purchaser and well operator refused to pay the portion of the royalties in dispute until the Monroe family and the Cooper heirs resolved their conflict. The Monroe family filed suit in the Columbia County Chancery Court seeking a declaratory judgment. Both the Monroe family and the Cooper heirs filed motions for summary judgment.
After a hearing, Chancellor Hamilton H. Singleton granted summary judgment in favor of the Monroe family and found that the Cooper heirs were only entitled to V16, instead of V12, of the royalties from the oil and gas wells. In a letter opinion, the chancellor explained that the 1922 deed gave the Cooper heirs an absolute, V16 “fractional share” royalty which was unaffected by the interest retained by the Monroe family in subsequent leases. Hence, the 1992 leases had no bearing on the Cooper heirs’ royalty interest in the wells. The Cooper heirs appeal from this grant of summary judgment.
This Court has jurisdiction pursuant to Ark. S. Ct. R. 1-2(a) (15) & (17) because this appeal involves a question of oil and gas law, and the construction of a deed.
The sole issue on appeal is whether the 1922 release deed granted the Cooper heirs a “fractional share” royalty, as was decided by the chancellor, or a “fraction of a share” royalty. A “fractional share” royalty means that the royalty owner will receive an absolute, predetermined fraction of the gross production of the well. Howard R. Williams & Charles J. Meyers, 2 Oil and Gas Law § 327 (1986). The royalty owner’s fractional interest will not fluctuate according to the amount of royalty interest retained by the grantor in subsequent leases. Id. For example, “an undivided Vi6 royalty interest in any oil, gas or minerals that may hereafter be produced” creates a “fractional share” royalty whereby the royalty owner is entided to Vi6 of the gross production of the well, regardless of the interest retained by the grantor in subsequent leases to third parties. Id.
In contrast, a “fraction of a share” royalty is dependent upon the interest retained by the grantor in leases to third parties. Id. While language creating a “fractional share” royalty refers to a fraction of the gross production, a “fraction of a share” royalty refers to a fraction of the royalty interest retained by the grantor. Id. For example, “an undivided one-sixteenth interest of the royalty” creates a “fraction of the royalty” interest whereby the royalty owner is entitled to Vi6 of whatever interest is retained by the grantor in leases to third parties. Id. Hence, if the grantor retains a Vs interest, the royalty owner will be entitled to Vi6 of the grantor’s Vs royalty or Vi28 interest.
The granting clause of the 1922 release deed in question states:
That we, Claude L. Smith and Helen E. Smith...grant, bargain, sell, convey, set over and assign and deliver unto the said I.L. and J.P. Cooper the following to-wit: An undivided Vi6 interest in and to all of the oil, gas and other minerals in the soil and under the surface thereof that may be produced from the land hereinafter described.
(Emphasis added.) This language clearly establishes that the royalty owners are entitled to a fraction of the gross production and not of the royalty interest. Hence, the chancellor was correct that the granting clause creates a “fractional share” royalty whereby the Cooper heirs are entitled to a consistent, Vi6 of the gross production regardless of the interest retained by the Monroe family in subsequent leases. See Phillip E. Norvell, Pirfalls in Developing Lands Burdened by Non-Participating Royalty, 48 Ark. L. Rev. 934, 937 (1995) (referring to Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359 (1955)).
If the pertinent language in the deed had ended at this point, there would be no dispute as to amount of the royalty interest conveyed to the Cooper heirs. However, after describing the property to be conveyed, the deed further provides:
.. .said undivided Vi6 interest in the oil, gas and other minerals herein conveyed is to cover and apply to that portion only, which is V2 of1/s of the oil, gas and other minerals, reserved by the grantor herein, his heirs or assigns, in any lease for the development of oil, gas and other minerals now in existence, or that may hereafter be executed and delivered to any lessee...
.. .it being the intention of the parties hereto that this grant in no way shall prevent or interfere with the grant herein or his heirs or assigns in their own name to lease the land herein described for the purpose of developing for oil, gas and other minerals, the grant herein giving the grantee a mineral interest only to Vj t of the oil, gas or other minerals to be delivered out of any royalty existing by virtue of any lease now on said land, or any that may be placed on said land by any party.
(Emphasis added.) The issue is thus whether either or both of these additional explanatory clauses create a “fraction of a share” royalty, and if so, how these clauses should be construed with the granting clause which clearly creates a “fractional share” royalty.
In Palmer v. Lide, 263 Ark. 731, 567 S.W.2d 295 (1978), this court construed the following language as a “fraction of a share” royalty:
It is hereby intended to convey to the said John C. Orr one-eighth of one-eighth of whatever royalty in the oil, gas, and minerals in, under and upon said land which has been retained....
...the said John C. Orr, however, to receive and be entitled to one-eighth of one-eighth of whatever oil, gas or mineral royalty may be reserved....
This court held that Orr was entitled to Vs of Vs of the Vs royalty interest retained by the grantor in the lease of the wells to a third party. Id. Thus, Orr was only entided to a V512 royalty interest. Id.
Likewise, this court in Barret v. Kuhn, 264 Ark. 347, 572 S.W.2d 135 (1978), interpreted “one-eighth of all oil and — or gas run to the credit of the royalty interest reserved” to be a “fraction of a share” interest. The same conclusion was reached by this court again in 1993 when construing the phrase “an undivided 13/24o...part of all royalties on oil gas produced....” Anadarko Petroleum Co. v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993) (emphasis supplied).
In this case, the two explanatory clauses from the 1922 release deed refer to “V2 of Vs of the oil, gas, and other minerals, reserved by the grantor” and “V16 of the oil, gas or other minerals to be delivered out of any royalty.” Thus, if we were to agree with the Cooper heirs’ argument and construe the explanatory clauses as creating a “fraction of a share” royalty, their resulting royalty share would be V2 of V8 of V6, and Vi6 of 1/6 respectively, or only a V96 interest.
Moreover, it is clear in the 1922 deed that the grantors anticipated that future leases were susceptible to fluctuation, and that the V16 royalty interest would not be affected by changes “in any lease...now in existence, or that may hereafter be executed...the grantor herein giving the grantee a mineral interest only to V16 of the oil, gas and other minerals... out of any royalty existing by virtue of any lease now... or any that may be placed on said land...!’ Thus, it is clear from this language that the grantors intended the Cooper heirs’ royalty interest to be a constant V16 despite any changes in leases subsequently executed.
Finally, the Cooper heirs assert that in 1922, Vs was the traditional interest retained by grantors in oil and gas leases. Thus, they argue that the grantors used the customary Vs designation when they really meant to state V2 of whatever interest was retained by the grantors in future leases.
Although the Cooper heirs are correct that Vs was the customary interest retained by grantors, Norvell, supra, an equally logical explanation is that the grantors wished to make it clear that the interest conveyed was V16 of the total production and not merely Vi6 of the V8 royalty interest they retained. Moreover, this court has said on numerous occasions that it will give a deed its plain meaning and will not go beyond the four corners of the instrument unless the language of the deed is uncertain, doubtful, or ambiguous. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Wynn v. Sklar & Phillips Oil, Co., 254 Ark. 332, 493 S.W.2d 439 (1973). It is obvious that the plain meaning of the deed is that it creates a “fractional share” royalty. Hence, there is no need to go beyond the unambiguous language of the document to consider tradition or custom in construing the language of the 1922 deed.
Affirmed.
Special Chief Justice Edward Wilson McCorkle and Special Justices Jim Burnett and Margaret Meads join in this opinion.
Jesson, C.J., Dudley, and Brown, J.J., not participating. | [
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Andree Layton Roaf, Justice.
Appellant, Ginger Howard, was a patient of the appellee, Ozark Guidance Center (“OGC”). Howard sued OGC, claiming that it negligently allowed an affair to continue between its receptionist and Howard’s husband. The trial judge granted OGC’s motion for summary judgment because the three-year statute of limitations for negligence actions had expired. On appeal, Howard claims that the trial court erred in not applying the continuous-treatment doctrine to toll the statute of limitations. We agree that the continuous-treatment doctrine does not apply to Howard’s cause of action, and affirm.
In June of 1986, Ginger Howard began receiving counseling services at Ozark Guidance Center, Inc. During this time, Howard became romantically involved with Lee Wyre, another OGC patient and the two were married on May 20, 1989. After their marriage, both Howard and Wyre continued their individual therapy sessions and also began marriage counseling with OGC.
In February 1990, Howard began to suspect that OGC’s receptionist, Stephanie VanBrunt, was having an affair with her husband. About this time, Howard and Wyre separated. After confirming her suspicions, Howard reported the affair to her therapist who in turn relayed this information to VanBrunt’s immediate supervisor. On March 15, 1990, the supervisor gave VanBrunt a “verbal reprimand” that her behavior “violated the professional ethics outlined” for OGC employees and directed VanBrunt to “refrain from having contact with the designated client while at work.” Despite this warning, VanBrunt continued her adulterous relationship with Wyre. On March 27, 1990, the supervisor gave VanBrunt a written warning which said:
your continued contact with this client is unacceptable and is affecting the effectiveness and reputation of Ozark Guidance Center. ... In the event that it is determined that you are continuing to associate with this client, Ozark Guidance Center will terminate your employment.
On June 12, 1990, Howard notified OGC that VanBrunt was continuing her sexual relationship with Wyre in violation of OGC’s verbal warning and written reprimand. Instead of firing her as threatened, OGC suspended VanBrunt with pay for six days, transferred her to another OGC location, and again instructed her to end her relationship with Wyre.
Howard and Wyre were divorced on October 18, 1990. It is not apparent when the relationship between Wyre and VanBrunt ended. However, on June 29, 1992 VanBrunt informed OGC that her relationship with Mr. Wyre would no longer be a problem because she had recently accepted a marriage proposal from Wyre’s brother. It is also unclear when, if ever, Howard ceased attending her therapy sessions at OGC. According to her complaint, Howard continued her therapy until June 12, 1991. However, in her answers to OGC’s interrogatories, Howard declared that as of December 3, 1993, she was “still under treatment of a case manager there at Ozark Guidance Center, whom I see once a week.”
On June 7, 1993, Howard filed a complaint in the Washington County Circuit Court alleging that OGC was negligent because it failed to take adequate measures to end the affair, declined to terminate VanBrunt, and did not implement a company policy addressing romantic relationships between clients and nonprofessional staff members. Howard’s complaint did not specifically allege “medical malpractice” or refer to the medical malpractice statute.
OGC filed a motion for summary judgment in which it alleged that the action was barred by the three-year statute of limitations for negligence actions. Howard responded by asserting that her action was one for medical malpractice, not negligence, and thus the continuous-treatment doctrine was applicable to toll the limitations period. The trial court found that Howard’s lawsuit was barred by the three-year statute of limitations for negligence actions and dismissed the case with prejudice.
Howard’s sole argument on appeal is that the continuous-treatment doctrine applies to her case, and thus her action was improperly dismissed by the trial judge. In 1988, this court first recognized the “continuous-treatment doctrine,” which tolls the two-year statute of limitations for medical malpractice actions until the medical treatment is discontinued. Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). However, before we can reach the issue of the applicability of the continuous-treatment doctrine, we must first decide whether Howard’s cause of action is one for negligence or medical malpractice.
All negligent acts that occur at a doctor’s office do not give rise to an action for medical malpractice. For example, a person who slips and falls in a doctor’s office might have a cause of action based on premises liability, not medical malpractice. In order for the medical-malpractice act to apply, the negligent act must cause a “medical injury” which is defined as:
any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services....
Ark. Code Ann. § 16-114-201(3) (1987) (emphasis supplied). Thus, the initial question to be answered in this case is whether Howard suffered a “medical injury” as defined by the statute.
This court has addressed on several occasions the question of what constitutes a medical injury under the malpractice act. In Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), a nursing home patient left the facility unnoticed in his wheelchair and was subsequently struck and killed by a car. We found that the patient’s death was an issue of negligent supervision, and not “the result of a doctor’s treatment or order,” and that the case was thus one of negligence, not malpractice. Id.
Likewise in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), this court reviewed a case of alleged negligent supervision of a patient. In Broum, a patient at a alcohol treatment center walked out of an unlocked door onto the roof of the center and jumped or fell to his death. Id. Although we held that the failure by the treatment center to provide a safe environment for its patients constituted a “medical injury” under the statute, we reconsidered this holding in Bailey, supra, and overruled the Broum decision, stating that:
On reexamination, we conclude that the facts set out in
Brown did not fall within the definition of medical injury. ...[T]he circumstances in Brown did not involve a PROFESSIONAL SERVICE but instead raised only the question of whether a patient was properly supervised by the health center’s staff.
Bailey, 307 Ark. at 19, 817 S.W.2d at 414.
Three years later, this court again considered the definition of medical injury under the malpractice statute. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). In Wyatt, a hospital nurse told a relative that Wyatt was being tested for AIDS. Id. Wyatt sued the nurse and the hospital for malpractice for the failure “to maintain medical confidentiality.” Id. This court found that “revealing confidential information” did not “fall within our expressed view of what constitutes a medical injury.” Id. Quoting a New York Supreme Court decision, we explained that:
The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve A MATTER OF MEDICAL SCIENCE OR ART REQUIRING SPECIAL SKILLS not ordinarily possessed by lay persons....
Id., 315 Ark. at 554, 868 S.W.2d at 509. (quoting Bonillo v. Beekman Downtown Hospital, 537 N.Y.S.2d 219 (N.Y. Sup. Ct. 1989)) (emphasis supplied). Thus, we determined that a breach of the patient-doctor confidentiality was an action in negligence, not malpractice. Id.
In sum, it is clear from our décisions that in order to be a “medical injury” the injury must be the result of a “professional service,” “a doctor’s treatment or order,” or “a matter of medical science.” Bailey, supra; Wyatt, supra. Howard’s complaint alleges that OGC was negligent in its handling of an employee’s relationship with a client. How a medical office supervises its staff is not a matter of “medical science” or the rendition of a “professional service”; consequendy, it is not a medical injury as required by the malpractice statute. The trial court therefore correctly applied the three-year statute of limitations for negligence actions in this instance.
Affirmed. | [
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PER Curiam.
Timothy Wayne Kemp was convicted of four counts of capital murder and sentenced to death on each count. In Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), we affirmed Kemp’s convictions, but reversed three of his four death sentences and remanded the case to the circuit court for resentencing. On May 28, 1996, we granted Kemp’s motion to stay the mandate after he indicated that he planned to file a petition for certiorari with the United States Supreme Court. On November 12, 1996, the Supreme Court denied his petition. We issued our mandate on November 27, 1996, affirming Kemp’s case in part, and reversing in part.
On November 18, 1996, prior to the issuance of the mandate but after the Supreme Court had denied his petition for certiorari, Kemp filed this motion for clarification of the stay of mandate in light of our criminal procedure rules governing the time for filing petitions for postconviction relief. In Bowen v. State, 323 Ark. 233, 913 S.W.2d 304 (1996), we announced our amendment to Ark. R. Crim. P. 37.2(c) to provide that, in cases where we affirm the conviction but reverse the sentence, a petition for postconviction relief must be filed within sixty days of a mandate following an appeal taken after resentencing, or, if no appeal is taken, the petition must be filed within ninety days of the circuit court’s judgment. Kemp asks us to clarify our recently revised rule in light of cases such as his involving multiple counts where a conviction and sentence is affirmed as to one count in a case, but the sentences are reversed for resentencing on the remaining counts.
We recall the portion of the mandate affirming the conviction and death sentence and stay it until such time as a final disposition of the remaining counts is complete. As such, any petition under Ark. R. Crim. P. 37.2(c) must be filed within sixty days of a mandate following an appeal taken after resentencing on the remaining counts. If no appeal is taken after resentencing on these counts, the petition must be filed with the appropriate circuit court within ninety days of the entry of judgment. | [
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DAVID Newbern, Justice.
William George Edward Weber was convicted of rape in violation of Ark. Code Ann. § 5-14-103(a) (3) (Repl. 1993) upon evidence that he engaged in deviate sexual activity with a person less than fourteen years of age. He was sentenced to sixty years’ imprisonment as an habitual offender. The charge arose from allegations that Mr. Weber engaged in fellatio and other sexual misconduct with an eight-year-old child.
Mr. Weber contends that the evidence was insufficient to support the conviction and that his motion for a directed verdict should have been granted. He also argues that a written statement made by the victim should not have been admitted into evidence because it had not been furnished to him by the prosecution prior to trial and was admitted in violation of the hearsay rule. In addi tion, he argues a statement made to an investigating officer should not have been admitted into evidence. He also questions the Trial Court’s refusal to instruct on first-degree sexual abuse as a lesser included offense.
We hold that it was not error to overrule the directed-verdict motion and that the admission of the child’s written statement was harmless because it was cumulative of other evidence. We also hold Mr. Weber’s statement to the investigating police officer was admissible because it was spontaneous, and we conclude that first-degree sexual abuse is not a lesser included offense of rape. The judgment is affirmed.
1. Sufficiency of the evidence
The victim testified about instances in which fellatio had occurred and about an instance in which Mr. Weber placed his finger in her anus. The mother of the victim stated Mr. Weber sometimes stayed overnight at her home and had opportunities to engage in the conduct alleged. She knew nothing of it until she came home unexpectedly on the evening of May 29, 1995, entered a bedroom, and found her daughter with her pants down and leaning over a bed. Mr. Weber came from behind a door looking nervous and said he had been examining the child for tick bites. The child said Mr. Weber had told her he intended to place his penis in her anus, and she then revealed the other conduct which led to the charge. The mother testified that Mr. Weber admitted his acts with the child to her but said the child “started it.” She testified that, after Mr. Weber became aware that she had notified the police, he admitted his guilt and said something like, “I’m busted ain’t I?”
In arguing that the evidence is insufficient, Mr. Weber points to inconsistencies in the child’s and the mother’s statements. While that argument could have affected the jury’s assessment of the credibility of the witnesses, it does not provide a reason for us to hold the Trial Court erred in refusing to grant a directed verdict in favor of Mr. Weber.
Mr. Weber argues further that the evidence was insufficient because a medical report resulting from an emergency-room examination of the child did not indicate that the child had suffered any physical injuries and showed no physical abnormality.
The evidence was sufficient that Mr. Weber engaged in deviate sexual activity with the child. “Deviate sexual activity” is defined as
any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.
Ark. Code Ann. § 5-14-101(1) (Repl. 1993).
As we have repeatedly held, “The uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction.” Caldwell v. State, 319 Ark. 243, 246, 891 S.W.2d 42 (1995). See Gunter v. State, 313 Ark. 504, 509, 857 S.W.2d 156, cert. denied 510 U.S. 948 (1993); Jones v. State, 300 Ark. 565, 566, 780 S.W.2d 556 (1989); Winfrey v. State, 293 Ark. 342, 351, 738 S.W.2d 391 (1987).
2. Statement to police
On the evening mentioned above when the child’s mother discovered the child and Mr. Weber in a compromising position, the mother called the police. Officer Marc Arnold of the Harrison Police Department was sent to the residence where he encountered Mr. Weber outdoors nearby. Officer Arnold knew only that he was to investigate a child abuse case, and he had no knowledge that Mr. Weber was the accused. Officer Arnold greeted Mr. Weber, and Mr. Weber’s response was “Man, I’ve really messed up.” The officer testified he then informed Mr. Weber of his rights and stayed with him until backup officers arrived. Officer Arnold then went into the house and spoke with the mother and child while another officer stayed outside with Mr. Weber.
Mr. Weber asserts that his statement should have been suppressed because it was made in the context of a custodial interrogation and without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1960). Mr. Weber further argues that the State failed to show that he made a voluntary and intelligent waiver of his right to remain silent.
In considering whether Mr. Weber’s statement was properly admitted, “we evaluate the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence.” Day v. State, 306 Ark. 520, 525, 816 S.W.2d 852 (1991). In denying Mr. Weber’s suppression motion, the Trial Court found that Mr. Weber made the incriminating statement in response to Officer Arnold’s greeting or salutation and that the statement was not elicited by police questioning. Although Mr. Weber does not dispute that finding, he insists that reversal is nonetheless required because (1) he made the statement before receiving Miranda warnings; (2) he did not feel “free to leave” and therefore was in police custody at the time he made the statement; and (3) he may have made the statement while under the influence of drugs and alcohol.
Even if those assertions are true, “the important point,” in the words of Justice George Rose Smith, is that Mr. Weber “was not being interrogated as a suspect, with respect to his possible guilt, when the statements were made.” Lacy v. State, 271 Ark. 334, 335, 609 S.W.2d 13 (1980). Although Mr. Weber argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. The Miranda warning is not required for voluntary, spontaneous statements. Ward v. State, 308 Ark. 415, 421, 827 S.W.2d 110 (1992). A spontaneous statement is admissible because it is “not compelled or coerced in any way significant under the Fifth Amendment’s privilege against self-incrimination.” Stone v. State, 321 Ark. 46, 53, 900 S.W.2d 515 (1995).
The record leaves no doubt that Officer Arnold was not interrogating Mr. Weber when he made the incriminating statement. According to the United States Supreme Court,
the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Rhode Island v. Innis, 446 U.S. 291, 301 (1980). It is undisputed that Officer Arnold posed no express questions to Mr. Weber that could have elicited his incriminating statement. It is also undisputed that Mr. Weber was not “subjected to the ‘functional equivalent’ of questioning,” as discussed in the Innis case. Officer Arnold could not have known that his simple greeting was reasonably likely to trigger an inculpatory response on the part of Mr. Weber. It was not error to refuse to suppress the statement.
3. The mitten statement
A counsellor who worked with the victim asked that she write about the events with Mr. Weber. The child prepared such a statement, and the prosecution offered it as evidence at the trial. It was received as an exhibit. Mr. Weber argues the written statement should not have been received into evidence because his counsel had not been furnished a copy of it prior to trial as required by his discovery motion and because it is hearsay. Ark. R. Evid. 801, 802.
Any error that may have occurred in the admission of the exhibit was harmless. As abstracted by Mr. Weber, the written statement contained the same information to which the child victim testified in person at the trial. The written statement was, therefore, merely cumulative of evidence that was admitted without objection.
When hearsay evidence is erroneously admitted, we will not reverse if it is “cumulative to other evidence admitted without objection.” Zufari v. Architecture Plus, 323 Ark. 411, 420-21, 914 S.W.2d 756 (1996). See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). See also Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 631, 893 S.W.2d 770 (1995).
The same is true with respect to evidence that may not have been provided to the defendant in violation of the State’s obligation under Ark. R. Crim. P. 17.1(a)(v). There was a dispute between Mr. Weber’s counsel and the prosecutor over whether the statement had been in the prosecutor’s file which had been open to inspection by the defense. Even if we were to assume that the State had improperly failed to provide the statement to the defense, we would affirm in this instance.
When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial.... The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse.
Burton v. State, 314 Ark. 317, 319, 862 S.W.2d 252 (1993).
In view of the fact that the abstract of the record reveals that the written statement was not different in any significant detail from the oral testimony of the victim, which was received without objection, we cannot say that Mr. Weber was prejudiced by its admission into evidence.
4. Lesser included offense
Mr. Weber argues the Trial Court erred in refusing to instruct the jury on the offense of first-degree sexual abuse, Ark. Code Ann. § 5-14-108(a)(3)(Repl. 1993), as a lesser included offense of rape.
A defendant is entitled to an instruction on a lesser included offense if two conditions are satisfied. First, the proffered instruction must truly cover a lesser included offense. “An offense is so included if: (1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; Ark. Code Ann. § 5-1-110(b)(Repl. 1993). As we said in Cozzaglio v. State, 289 Ark. 33, 38, 709 S.W.2d 70 (1986), an offense is not a lesser included offense of another if “[e]ach crime requires a different element of proof.”
The second condition is that there must be “a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” § 5-1-110(c). We need not consider the rational basis requirement because we have concluded that first-degree sexual abuse, as it might have been proven in this case, and as Mr. Weber asked that it be described to the jury by his proffered instruction, contains an element not included in rape, and thus it is not a lesser offense included in the offense charged.
In considering Mr. Weber’s contention, it is necessary to compare the. elements of the offense charged with those of first-degree sexual abuse. As stated above, Mr. Weber was charged with rape based on the provision that, “A person commits rape if he engages in ... deviate sexual activity with another person: ... (3) Who is less than fourteen (14) years of age.” § 5-14-103(a)(3).
The elements of first-degree sexual abuse that might have applied in this case are described as follows: “A person commits sexual abuse in the first degree if: ... (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.” Ark. Code Ann. § 5-14-108(a)(3) (Repl. 1993). “Sexual contact” is defined as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” § 5-14-101(8).
We have no case in which the Court has held that first-degree sexual abuse is, or is not, a lesser offense included in rape. We have, however, held that rape does not include certain degrees of carnal abuse because, unlike the rape provision, the carnal abuse statutes permit conviction only if the defendant is a certain age. See Ark. Code Ann. §§ 5-14-104(a)(Repl. 1993)(stating accused must be “under the age of eighteen (18) years” to commit first-degree carnal abuse); 5-14-106(a)(stating accused must be “twenty (20) years old or older” to commit third-degree carnal abuse). Because the carnal abuse statutes contain an element not included in the rape statute (i.e., the accused’s age requirement), we have concluded that certain degrees of carnal abuse are not included in the offense of rape. Bonds v. State, 310 Ark. 541, 543-44, 837 S.W.2d 881 (1992); Leshe v. State, 304 Ark. 442, 448, 803 S.W.2d 522 (1991); Kester v. State, 303 Ark. 303, 308, 797 S.W.2d 704 (1990); Sullivan v. State, 289 Ark. 323, 328-30, 711 S.W.2d 469 (1986).
By clear analogy to the carnal abuse cases, we hold that first-degree sexual abuse, as it might have been proven by the evidence in this case, is not a lesser included offense of rape because it contains an element (age of the perpetrator) not found in the rape statute. Therefore, Mr. Weber was not entitled to an instruction on first-degree sexual abuse under Ark. Code Ann. § 5-1-110(b) (Repl. 1993).
Before leaving this subject, we must point out that in obiter dicta we and the Court of Appeals have said from time to time that first-degree sexual abuse is a lesser included offense of rape. We said it in Bonds v. State, supra, and in at least four other cases. See Langley v. State, 315 Ark. 472, 473, 868 S.W.2d 81 (1994) (stating, where defendant was charged with rape, that “the trial court correcdy charged the jury on the lesser included offense of sexual abuse”); Curtis v. State, 279 Ark. 64, 65, 648 S.W.2d 487 (1983) (“The jury also found the appellant not guilty of rape but guilty of the lesser included offense of sexual abuse in the first degree....”); Beed v. State, 271 Ark. 526, 547, 609 S.W.2d 898 (1980) (where defendant was charged with rape and Trial Court failed to instruct on first-degree sexual abuse, Supreme Court affirmed because there was no rational basis for the instruction; the Court did not dispute the contention that sexual abuse was included in rape); Speer v. State, 18 Ark. App. 1, 8, 708 S.W.2d 94 (1986) (stating first-degree sexual abuse is a lesser included offense of attempted rape but that “sexual abuse in the first degree is proven by a finding of the same or less than all of the elements of rape”).
We note that first-degree sexual abuse may be proven by facts other than those evident in this case, and we decline to say that it may not be a lesser included offense in rape in any case. Our holding in this instance is solely that first-degree sexual abuse as defined in § 5-14-108(a)(3), the subsection upon which Mr. Weber wanted the Trial Court to instruct the jury, is not a lesser offense included in rape as charged here pursuant to § 5-14-103(a)(3).
Affirmed. | [
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Per CURLAM.
The appellant, Charles Lee Whitfield, was convicted of capital murder and sentenced to life in prison without parole. Pursuant to Anders v. California, 386 U.S. 738, (1967), his counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Whitfield was notified of his right to file a pro se brief within thirty days. He did not file a brief. The State agrees that there is no merit to Whitfield’s appeal. We find that Whitfield’s counsel did not fully brief all of the rulings that were adverse to her client. Accordingly, we order rebriefing.
Whitfield’s conviction arose from an incident that occurred in the detoxification cell at the Blytheville City Jail on April 1, 1995. After he was arrested on a public intoxication charge, Whitfield was placed in the cell with three other inmates, including the victim, Doug Richmond. A short time afterward, the screams of two of the other inmates alerted jailers to an altercation between Whitfield and Richmond. When the police arrived, they discovered Whitfield, who was naked from the waist down, kicking Richmond in the head and shouting that Richmond would perform oral sex on him “before he dies.” Richmond died of massive head trauma as a result of the attack.
Whitfield was charged with attempted rape and capital murder. After waiving his right to a jury trial, he received a bench trial in which the only adverse rulings were the denial of his motions for a directed verdict. Three adverse rulings were made, however, prior to the trial. Two of those rulings were denials of Whitfield’s motions for a continuance. The third ruling was a denial of Whitfield’s motion for a second mental examination by a private mental health professional after he had been examined and determined competent by a court-appointed psychologist.
Anders v. California, supra, and Ark. Sup. Ct. R. Rule 4-3(j) set forth the required contents of a no-merit brief that accompanies an attorney’s request to withdraw. In pertinent part, Rule 4-3(j) provides:
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.
In the no-merit brief, Whitfield’s counsel addresses the denial of the motions for a continuance and sets forth the evidence that was sufficient to convict her client of capital murder, but she omits the adverse ruling concerning Whitfield’s request for further mental examination. Because of this omission, the no-merit brief does not comply with Anders v. California, supra, and Ark. Sup. Ct. R. Rule 4-3(j). Accordingly, we order Whitfield’s attorney to file a new brief on or before December 26, 1996. In accordance with Rule 4-3 (j) (2), Whitfield will have thirty days from that date to raise any additional arguments regarding the Trial Court’s denial of his request for a second mental examination.
Rebriefing ordered. | [
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WAYMOND M. BROWN, Judge
|, Robert Stanley Freeman (hereinafter, “Appellant”) stood trial before a jury in the Cleburne County Circuit Court in January 2015 and was convicted of aggravated robbery, aggravated assault, and theft of property. He now appeals his conviction for aggravated assault, arguing that the trial court erred by denying his motion for a directed verdict. We affirm.
We consider appeals of denied directed-verdict motions as challenges to the sufficiency of the evidence. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Only evidence supporting the verdict will be considered. The test for determining the 12sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach .a conclusion and pass beyond suspicion or conjecture.
The facts of this case are not in dispute. On December 2, 2013, appellant robbed a Heber Springs McDonald’s restaurant of approximately $9,000. He ran behind a nearby clinic where the victim, Kristina Swiney, an employee of the clinic, pursued him in order to ensure that he did not steal anything from her vehicle. When she caught up to appellant, he was attempting to remove his jacket and climb over a fence to escape. Swiney retrieved his jacket and asked him to trade his jacket for the stolen money. Appellant then turned towards Swiney, brandishing a fixed-blade throwing knife. He then pushed her and cut her left shoulder in the process. Appellant admitted at trial that Swiney’s scar produced by the altercation could “very well” have been caused by his knife when he pushed her. After pushing her, he jabbed his knife in her direction and stated “Don’t fuck with me, Bitch.” Swiney testified that she gave up the pursuit because she thought appellant would cut her throat. He was arrested and later found guilty by a jury of, among other crimes, aggravated assault.
A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person. The essence of | ¡¡appellant’s sufficiency-of-the-eviclence challengé is that his actions were reckless rather than purposeful and, therefore, did not rise to the level Of aggravated assault. A person acts purposefully with respect to his or her conduct or as a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause .the result. A person acts recklessly with respect to attendant circumstances or as a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
The facts and arguments of the instant case are very similar to that of Kendrick v. State. In Kendrick, after the appellant realized that he would be unable to escape from two police officers pursuing him, he turned towards one officer and held a knife in a “threatening manner.” The officer was able to strike the appellant with his baton and take away the knife. The appellant argued that he. created no substantial risk of death or serious physical injury to the officer because they were four or five feet apart from each other, and there was a chain link fence separating them. In affirming his conviction for aggravated assault, our court noted that if the officer was close enough to the appellant to strike him with his baton, the appellant was close enough to the officer to cause serious physical injury.
Here, appellant was close enough to Swiney to push her arid injure her, while brandishing' a " knife. Appellant’s state of mind, whether reckless or purposeful, is something |4that cán seldom be known to others, so it ordinarily cannot be shown by the facts or circumstances in evidénce. Therefore, the jury is allowed to draw upon its own common knowledge and experience to infer ‘intent from the circumstances. Finally, appellant’s argument lacks merit because it is the conduct that must be undertaken purposefully, hot the intended result. The evidence showed that appellant purposefully turned toward his pursuer, brandished a knife, and pushed her. We hold that such conduct manifested an extreme indifference to the value of human life.
We cannot find error in the trial court’s denial of appellant’s motion for a directed verdict on the charge of aggravated assault. Accordingly, we affirm.
Affirmed..
Gladwin, C.J., and Abramson, J., agree.
. Russell v. State, 367 Ark. 557, 242 S.W.3d 265 (2006).
. White v. State, 98 Ark. App. 366, 255 S.W.3d 881 (2007).
. Id.
. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006).
. Id.
. Ark. Code Ann. § 5-13-204(a)(1) (Repl. 2013).
. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).
. Ark. Code Ann. § 5-2-202(3) (Repl. 2013).
. 37 Ark. App. 95, 823 S.W.2d 931 (1992),
. Id.
. Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987).
. Neely v. State, 18 Ark. App. 122, 711 S.W.2d 482 (1986). | [
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DAVID M. GLOVER, Judge
| tRoddrick . Burton brings this appeal from the order of the Mississippi County Circuit Court affirming the decision of the Arkansas Department of Human Service (DHS) to terminate Burton’s eligibility under the Alternatives for Adults with Physical Disabilities (AAPD) program. Although Burton argues four points on appeal, only his challenge to the sufficiency of the evidence is preserved for our review. 'We affirm the agency’s decision.
In Juné 2012, Burton suffered a hemorrhagic stroke. In November 2012, he applied for benefits under the AAPD program. In January 2013, he was determined eligible for benefits after an assessment by a registered nurse employed by DHS. Burton received twenty-one hours of . weekly care provided by a home-health aide, who came seven days per week to help him bathe, get dressed, use the toilet, get food, and eat. Burton’s sister, Stephanie Little, a home-health aide, provided most of these services.
pin October 2013, the same DHS nurse conducted a reevaluation of Burton using DHS’s newly implemented ArPath assessment tool, which was promulgated pursuant to Medicaid rules and regulations and is, therefore, afforded the full force and effect of law. Although the eligibility criteria did not change, the reassessment determined that Burton no longer met the eligibility criteria, and he was terminated from the AAPD program. Burton had originally qualified using the earlier qualitative assessment form. In DHS’s notice that Burton was no longer eligible, it cited an admittedly incorrect regulation.
Burton timely requested an administrative hearing, and, after the hearing, the hearing officer affirmed the agency’s initial decision in a written decision issued January 6, 2014. The hearing officer found that Burton was not functionally disabled in that Burton was able to perform all three activities of daily living (ADL) — toileting, eating, and ambulation or transferring — without any assistance from another person. Based on the evidence, the hearing officer concluded that DHS had met its burden of proof by showing that Burton did not meet the medical criteria for an individual with a functional disability under the AAPD program.
| ¡¡Burton appealed the administrative decision to the circuit court. After hearing oral argument and reviewing written briefs, the circuit court affirmed the agency’s decision. In its order, the circuit court found.that the agency decision did not prejudice Burton’s substantial rights; was not in violation of constitutional or statutory provisions; was not in excess of the agency’s statutory authority; was not made upon unlawful procedure; was not arbitrary, capricious, or characterized by abuse of discretion; and was supported by substantial evidence. Burton now appeals.
In this appeal, our review is directed not to the decision of the circuit court but to the decision of the administrative agency. Arkansas Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 249 S.W.3d 797 (2007). Review of administrative agency decisions, by both the circuit court and the appellate court, is limited in scope. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Id.
An appellate court sitting in review of a finding of an administrative agency must affirm the agency’s finding if the finding is supported by any substantial evidence. Ark. Code Ann. § 25-15-212(h) (Repl. 2014); C.C.B. v. Arkansas Dep’t of Health & Human Servs., 368 Ark. 540, 543-44, 247 S.W.3d 870, 872 (2007). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, giving the evidence “its strongest probative force in favor of the administrative agency.” Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, at ¶ 4-5, 368 S.W.3d 69, 73.
j4As with all appeals from administrative decisions under the Administrative Procedure Act, the circuit court or the appellate court may reverse the agency decision if it concludes that the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h).
As we mentioned earlier in this opinion, Burton argues three points that are not preserved for our review. DHS argues that the points are not preserved because Burton never raised them before the agency. Although we believe Burton properly raised his issues before both the agency and the circuit court, neither specifically ruled on those issues. Where neither the administrative agency nor the circuit court makes a ruling on an issue, that issue is not preserved for appellate review. See Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001).
This leaves us with Burton’s argument that there is no substantial evidence to support the agency’s decision. He argues that the decision is against the weight of the evidence and ignores his medical records. The issue, however, is not whether the evidence would support some other finding; rather, the issue is whether the evidence supports the finding that was made by the agency. Hester v. Arkansas Prof'l Bail Bondsman Lic. Bd., 2011 Ark. App. 389, 383 S.W.3d 925. To establish a lack of substantial evidence, an appellant is required to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach the same conclusion; Id. The evidence is given its strongest probative force in favor of the agency’s ruling. Id. Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Id. An appellant must prove that there was a willful and unreasoning action, without consideration, and in disregard of the facts and circumstances of the case. Id.
Melissa Morris, the DHS nurse who conducted both the original assessment and the reassessment that resulted in the determination that Burton was no longer eligible, testified that she tries to gauge whether the patient is having a good day or a normal day when doing an assessment. She also said that she tries to ask the questions relating to the ADLs in two or more ways to make sure the patient understands what is being asked. She expressed her opinion that Burton’s condition had improved. She said that when she saw him in December 2012, Burton had recently had a stroke and had recently moved to Arkansas. According to Morris, Burton required assistance with transfers and ambulation at that time because he was not even able to get out of the bed without somebody helping him up.
Morris testified that, as part of her assessment, she directly asked Burton “[D]o you need help with transfers, do you need help with walking?” She also reported watching Burton walk with his Hemi-Walker without any assistance or without any family member beside him. Morris said that Burton was further observed as being able to transfer into and out of bed without difficulty. Morris testified that Burton reported that he was able to toilet independently as long as he wore pull-up clothing and sweats. She quoted Burton as saying |fi“as long as T have these on. This is'why I wear them all the time. I can go by myself.” ' She said that she scored Burton as independent in toileting because Burton had a bar to help him up and off the toilet, even though Burton told her that he did not need the device. She stated her opinion that Burton was able to clean himself without assistance. Morris said that she made the distinction in toileting between Burton pulling his pants up and down versus getting on and off the toilet. Burton was eating cereal without help when Morris walked in, and he reported that after somebody set up his tray and prepared his food that he was able to always feed himself. The definition of eating does not include the preparation, of meals, only the act of putting the food into the mouth, said Morris.
Burton admitted that Moore’s testimony was an accurate recap of what had taken place during the assessment interview. He then went on to deny that he was able to walk without someone being close in case he loses his balance. He also said, he cannot sit on the toilet or clean himself afterwards because he uses his right arm to hold onto the rail in order to maintain his balance.
On appeal, Burton argues that Morris’s testimony is contradicted by testimony from him; his sister, Stephanie Little, who provided some care under the AAPD program; and his mother, Linda Robinson; as well as his medical records. However, it is for the agency to determine where the preponderance of the evidence lies; upon appellate review, we consider the evidence in the light most favorable to the agency’s decision and uphold that decision if it is supported by substantial evidence. Walls v. Arkansas Oil & Gas Comm’n, 2012 Ark. 418. It is also exclusively within the province of the agency to determine the credibility and the weight to be accorded to each witness’s testimony. See id. Because DHS’s ^determination is supported by substantial evidence, we must affirm. Id. Moreover, because the agency’s decision is supported by substantial evidence, the decision cannot be classified as arbitrary or capricious. Arkansas Pub. Emps. Ret. Sys. v. Taylor, 2013 Ark. 37, 425 S.W.3d 738.
Affirmed.
Hixson and Hoofman, JJ., agree.
. The ArPath assessment tool is a series of 200 questions that are designed to evaluate the beneficiary’s level-of-care need for purposes of AAPD. Ark. AAPD Provider Manual § 212.100.
. Under the applicable criteria, a person must be unable to perform at least one ADL without extensive assistance or total dependence upon another person, or, at least two ADLs without limited assistance from another person. There are two other means by which an individual may be determined eligible under the AAPD program. However, Burton does not argue that he is eligible under these alternatives. Therefore, we confine our analysis to the ADL criteria.
. The arguments are that DHS provided a fatally defective notice of its action, that DHS failed to consider his medical history and medical records, and that the undefined nature of the ArPath assessment tool renders the program’s eligibility standards arbitrary. | [
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PHILLIP T. WHITEAKER, Judge
| ] This is an appeal of an order terminating parental rights from the Garland County Circuit Court. This is the second time that this court has heard this matter. In the first appeal, counsel for Appellant Jennifer Brown filed a motion to be relieved from representation and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Rule 6 — 9(i) of the Rules of the Arkansas Supreme Court and Court of Appeals. We denied counsel’s motion to withdraw and ordered rebriefing in merit format. Brown v. Ark. Dep’t of Human Servs., 2015 Ark. App. 425, 2015 WL 5042892. The case is now before us on the merits of the order terminating Brown’s parental rights to her daughter, S.B.
laThe relevant facts concerning the child’s removal and the court’s proceedings were detailed in our previous opinion and are repeated here. On September 4, 2014, the Department of Human Seryices (DHS) received a hotline referral alleging that the appellant. was using methamphetamine while caring for eight-month-old S.6. A family-service worker conducted a home assessment and confirmed drug usage in the presence of the child. Instead of removing the child, the family service worker developed a protection plan allowing the child to remain with the appellant, provided that she not use drugs unless they were prescribed to her.
The next day, the appellant contacted DHS requesting help. The appellant informed the family-service worker that she was concerned for S.B.’s safety because S.B.’s homeless and drug-addicted father, Frederick Brown, had taken the child from the home with nothing but a bottle and the clothes and diaper the child was wearing. The family service worker located Mr. Brown and the child at his sister’s house. Mr. Brown tested positive for methamphetamine, amphetamine, cocaine, and THC. At that time, the family-service worker removed the child and instituted a seventy-two-hour hold.
After the child had been removed, the family service worker obtained additional information on the appellant, including her social security number. A subsequent Children’s Reporting and Information System (CHRIS) check revealed that the appellant had a history with DHS, including an involuntary termination of her parental rights to another child.
An ex parte order for emergency custody was entered on September 9, 2014, and counsel was appointed. A probable-cause order was entered the next day. The only services |sordered at that time were directed at the father, Frederick Brown. No services were offered to the appellant except supervised visitation with the child.
On September 11, 2014 — less than oné week after removal — DHS filed a petition to terminate the appellant’s parental rights. As the grounds for termination, DHS alleged that, in September 2009, her parental rights to one of S.B.’s siblings had been involuntarily terminated. DHS did not seek to terminate the parental rights of Frederick Brown at that time.
The adjudication and termination hearings were held simultaneously on October 23, 2014. At the hearing, DHS introduced evidence of the appellant’s previous history with the department. Counsel for the appellant attempted to introduce evidence that S.B. was not born with drugs in her system in contrast to the child for whom the appellant’s previous rights had been terminated. The trial court denied admission of such evidence, determining that such evidence was not relevant, and then prevented counsel from completing a proffer of'that evidence upon further objection by DHS.
The trial court adjudicated the child dependent-neglected and ultimately found that termination'was in the best interest of the child. Separate orders of adjudication and for termination of parental rights were entered on October 28, 2014. Brown appeals the termination order, alleging the trial court committed reversible error by (1) failing to address the statutorily mandated factor of adoptability, (2) improperly finding that her past history with DHS involving her other children was sufficient to support a finding of potential harm [4to this child, and (3) prohibiting her from introducing evidence to distinguish the current situation from her past interactions with the department.
We review termination of parental rights cases de novo. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights must be based upon a finding by clear and convincing evidence that one of the grounds stated in the termination statute is satisfied and that the sought after termination is in the children’s best interest. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding on the ■disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, .although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
Here, there is admittedly a statutory ground for termination — the previous involuntary termination of Brown’s rights to another child. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a )⅛) (Supp, 2015). As a result, Brown does not appeal the statutory grounds for termination; instead, her appeal is essentially an attack on the court’s best-interest finding. In making a “best-interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential of harm to the child if custody is returned to a parent. Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, at 4, 431 S.W.3d 364, 367; Harper v. Ark. Dep’t of Human Servs., 2011 Ark. App. 280, 378 S.W.3d 884.
| ¿Brown first argues that the trial court erred in failing to address the statutorily mandated factor of adoptability, and the State concedes this point. Our court has said that “[a]doptability is merely a consideration and not a requirement.” Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, at 13, 378 S.W.3d 227, 233. Even so, “[c]onsideration requires evidence ... or at least some finding by the trial court that other aspects of the best-interest analysis so favor, termination that the absence of proof on adoptability makes no legal difference.” Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 28, at 4, .2010 WL 135194. Therefore, under our prior cases, the circuit court’s best-iriterest analysis will be insufficient unless there is some evidence regarding adoptability or the court explains why termination is in the best interest of the children regardless of their adoptability.
Here, there was no evidence introduced at the hearing regarding -the adoptability of S.B. Further, the court made no finding that this absence of evidence of adopta-bility made “no legal difference” to the ultimate decision of what was in the child’s best interest. Accordingly, the trial court clearly erred when it found that termination of Brown’s parental- rights 'to the child was in her best interest without addressing the adoptability factor.
Brown also argups that the . trial court improperly denied evidence on relevancy grounds. She argues that DHS was relying on Brown’s past history with the Department to make the case that termination was in this child’s best interest. This evidence was received by the court as relevant. However, when Brown attempted to rebut that evidence with evidence highlighting the differences between this case and her previous cases, the court found that evidence to be irrelevant. This ruling was in error.
IfiWe review a court’s decision to admit or exclude evidence for an abuse of discretion. Holmes v. State, 2014 Ark. App. 502, at 4, 441 S.W.3d 916, 918. 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 moré probable or less probable than it would be without the evidence.” The court’s focus in the best-interest analysis is on the child before the court. Thus, while it is- clear that evidence of a parent’s history with the child’s siblings and DHS may be relevant to the analysis, it is even more clear that evidence as to the parent’s relationship with the particular child at issue is relevant as to whether the parent’s parental rights to that particular child should be terminated. Thus, the trial ■court’s failure to allow Brown to introduce such evidence was an abuse of discretion.
Because the trial court improperly failed to consider or address adoptability and other relevant evidence in performing its best-interest analysis, we need not address Brown’s contention that the trial court’s best-interest analysis on the facts below was erroneous. Rather, we reverse and remand for further deliberation by the trial court'after consideration of the appropriate' evidence.
Reversed and remanded.
Abramson and Virden, JJ., agree.
. S.B.’s father, Frederick Brown, was also a party to the proceedings below. His parental rights, however,' were not terminated and, therefore, he is not a party to this appeal. | [
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Donald L. Corbin, Justice.
Appellants, Richard and Mae Perryman, appeal and appellee, Lee Hackler, cross-appeals from the judgment of the Crawford County Chancery Court that found the contract of sale for real property between appellants as purchasers and appellee as seller to be usurious; awarded appellants $6,696.28, twice the amount of interest they paid; awarded appellee $6,224.52, comprised of $284.52 in principal accrued up to the time appellants defaulted and $5,940.00 in rent accrued after appellants defaulted; found that the net judgment in favor of appellants, $471.76, could be satisfied by allowing appellants to remain in possession of the property for twenty-two additional days; directed appellants to vacate the property no later than the twenty-second day; and ordered both sides to pay their own costs and attorneys’ fees. This case presents questions about usury. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(13). We find no error and affirm.
PROCEDURAL HISTORY
Pursuant to the contract at issue dated March 6, 1992, appellee sold to Paul and Tina Akin, Lot 145, Royal Oaks Addition to the City of Van Burén, Arkansas. The terms of the contract were a purchase price of $32,145.00, to be financed at twelve percent per annum with $500.00 down and monthly installments of $330.65 until liquidation of the debt. The contract stated it was not to be assigned without appellee’s written consent, that failure to make any installments would result in forfeiture to appellee, and that upon forfeiture, the relationship of landlord and tenant would arise between appellee and the purchasers. The contract was signed by appellee, Paul Akin, and Tina Akin. On the reverse side of the one-page contract, on February 8, 1993, Paul and Tina Akin assigned all their “right, title, and interest in this contract over to Richard and Mae Perryman.”
Appellants filed suit on May 9, 1994, claiming the contract was usurious and void as to interest due, seeking recovery of $13,853.58 as twice the total interest paid under the contract, seeking reformation of the contract to provide for monthly installments on the amount of principal owed, and seeking restraint of appellee’s actions against appellants for non-payment of rent.
Appellee moved to dismiss the complaint for failure to state facts upon which relief could be granted, arguing that usury is an affirmative defense rather than a cause of action, that, due to the lack of appellee’s written consent, there was not a valid assignment of the contract from the Akins to appellants, that the Akins are necessary parties to this action, that there is a pending case between these parties in municipal court on appellee’s complaint for unlawful detainer, and that appellants should respond in that court. The trial court denied the motion to dismiss, ruling appellants had stated sufficient facts to permit the court’s denial of the motion.
After a bench trial in which the only witnesses were appellee and appellants, the trial court announced its ruling from the bench. The written judgment and decree was entered in accordance with that ruling. Appellants raise five points for reversal on direct appeal. Appellee, as cross-appellant, raises four points on cross-appeal should we reverse on direct appeal. We affirm on direct appeal and do not reach the contingent cross-appeal.
STANDARD OF REVIEW
We review chancery cases de novo, and do not reverse the chancellor’s factual findings unless they are clearly erroneous. Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1994). Chancellors have broad powers to fashion any remedy that is reasonable and justified by the proof. Id.
DIRECT APPEAL
As their first point for reversal, appellants contend that, in addition to recovering twice the amount of interest they paid under the contract to appellee, they are also entitled to recover twice the amount of interest paid by their assignors, Paul and Tina Akin. Appellants cite Ark. Code Ann. § 4-57-107 (Repl. 1991) as giving an assignee of a contract standing to obtain relief from a usurious contract. Appellants also rely on Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S.W.2d 314 (1954), a pre-Amendment 60 case which held that, pursuant to Act 39 of 1887, of which section 4-57-107 was a part, the defense of usury was not personal to the original borrower and could therefore be raised by the borrower’s assignee.
Appellants rely upon such authority in error. Section 4-57-107 was repealed by implication in 1982 by Amendment 60 to the Arkansas Constitution. Henslee v. Madison Guar. Sav. and Loan Ass’n, 297 Ark. 183, 760 S.W.2d 842 (1988). In addition, since Bailey, 223 Ark. 686, 269 S.W.2d 314, was based on Act 39 of 1887, later codified in part as section 4-57-107, Bailey is likewise not controlling here. We observe that, even if section 4-57-107 and Bailey were applicable to this case, they would not support appellants’ argument that they are entitled to recover twice the interest paid by their assignors. Section 4-57-107 and Bailey provided nothing more than a rule of law establishing that an assignee has standing to sue for recovery of usurious interest paid under a contract that was assigned.
Although it is well-settled that an executory contract for the sale of land is assignable, Ark. Code Ann. § 4-5-102 (1987) and Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920), and that the assignor need not be a party, Ark. Code Ann. § 16-61-112 (1987), it is not the law that a cause of action for usury is assignable. See National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S.W.2d 262 (1923). In short, appellants have cited no authority supporting their argument. Accordingly, we cannot say the trial court erred in limiting appellants’ award to twice the amount of interest they paid.
While arguing this point in their brief, appellants contend that one who knowingly charges a usurious interest rate should not be allowed to “keep the fruits of his crime.” Although Article 19, Section 13 of the Arkansas Constitution provides the General Assembly with authority to enact legislation providing punishment for one who knowingly charges a usurious rate of interest, the General Assembly has not done so. Appellee has accused appellants of libel regarding the “fruits of the crime” statements made in their brief and has requested sanctions from this court. We decline to do so. Appellee has cited no authority for this court to impose any sanctions on appellants concerning the contents of their brief. The only authority for sanctioning comments in a brief is when the comments are disrespectful to a trial court. Ark. Sup. Ct. R. 1-5.
The trial court found that the contract of sale terminated in April 1994 due to appellants failure to make their installment payments, and thereupon reverted to a month-to-month lease pursuant to the following terms of the contract:
And it is hereby further covenated [sic] and agreed by and between the parties hereto, that immediately upon failure to pay any of the installments above mentioned, or the annual interest on the balance, from year to year when due, all previous payments shall be forfeitured [sic] to the party of the First part, and the relation of landlord and tenant shall arise between the parties hereto, and in the event of failure or refusal of the Second party to deliver possession of said premises to the First party, after three days’ notice and demand, in writing, for the same, the First party shall have the right to proceed by Writ of Possession, as in the cases of unlawful Detainer.
For their second point for reversal, appellants contend this finding was erroneous because the amount due them on their claim for usury offset any amount that was due under the contract for the period that they did not make payments. Testimonies from both appellants revealed that they continued to live in the house without making any payment to appellee from April 1994, one month prior to when the present suit for usury was filed, until January 1995, when the suit was tried. Appellants explain that their non-payment was an effort to mitigate damages by reducing the amount of interest they could recover as usuriously paid.
The short answer to this argument is that the current usury law only voids the contract as to “unpaid interest.” Art. 19, § 13(a) (ii). As this court observed in Henslee, 297 Ark. 189, 760 S.W.2d 842, when distinguishing Amendment 60’s change to the usury law, although former law voided the entire contract if it exceeded the maximum rate of lawful interest, “[t]he express intent of Amendment 60 is that the taint of usury' voids the agreement only to the extent of unpaid interest[.]” Id. at 189, 760 S.W.2d at 845.
It is undisputed that appellants were in default when they filed suit. Therefore, the acceleration and forfeiture provision of the contract was triggered notwithstanding the usurious interest, and pursuant to the express terms of the contract, the landlord-tenant relationship arose. The trial court did not err in concluding that the relationship of landlord-tenant existed pursuant to the terms of the contract.
As their third point for reversal, appellants contend the trial court erred in awarding appellee judgment for unpaid rent because, due to the amount of usurious interest paid by them under the contract, they did not owe appellee anything at the time suit was filed. This argument is entirely without merit. Appellants cite absolutely no authority that their right under Article 19, Section 13 to recover twice the interest paid arose without proceedings in law or equity. There was evidence to support the chancellor’s finding that the fair rental value of the home was $330.00 per month. The chancellor awarded judgment to appellee based on twice that amount consistent with the unlawful detainer law. See Ark. Code Ann. § 18-60-309 (1987). On this record, we cannot say the chancellor was clearly erroneous in this regard.
As their fourth point for reversal, appellants challenge the chancellor’s denial of their request to reform the contract to provide that the principal due be paid in equal monthly installments over the term of the contract. Appellants rely on Lotz, 317 Ark. 250, 878 S.W.2d 367, in which this court affirmed, as modified, the reformation of a usurious installment sales contract for real property. Appellant’s reliance on Lott is wholly misplaced. Lott did not involve defaulting purchasers such as the present case does, and is therefore not controlling. In fact, the purchasers in Lott continued to make payments under the contract even after they filed suit. In addition, there is no indication in Lott that the contract terminated by operation of its terms such as in the present case.
Given the proof that appellants defaulted on their payments prior to their discovery of the usurious rate of interest, we cannot say the chancellor was clearly erroneous in concluding the contract for sale terminated by its own terms and in consequently denying appellants’ request for reformation.
As their final point on direct appeal, appellants cite Winn v. Chateau Cantrell Apartment Co., 304 Ark. 146, 801 S.W.2d 261 (1990), and request this court to alter the results of the case on de novo review. There are only two allegations made under this point that were not made previously: one, that this court should set aside the writ of assistance entered in favor of appellee to assist him in taking possession of the property and issue a writ in favor of appellants; and two, that this court should award appellants their attorneys’ fees and costs. Appellants’ allegations are made succinctly, without convincing argument or citation to authority for the altered results requested. It is not apparent without further research that these arguments are well-taken; therefore, we do not consider them. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995).
CROSS-APPEAL
Appellee introduces his arguments on cross-appeal with the statement that this court disregard his cross-appeal if we find no error in the rulings on direct appeal. Therefore, consistent with appellee’s request, we do not address the arguments raised on cross-appeal. Farm Credit Bank v. Miller, 316 Ark. 388, 872 S.W.2d 376 (1994); John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991).
The chancellor’s judgment and decree is affirmed on direct appeal. The contingent cross-appeal is rendered moot consistent with appellee’s request. John Cheeseman Trucking, 313 Ark. 229, 853 S.W.2d 278. | [
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Robert L. Brown, Justice.
Appellant Derrick Mitchell was tried and convicted of three offenses arising out of a shooting incident in Union Chapel, including first-degree murder. He appeals on six grounds. We hold that none of the points of appeal has merit, and we affirm.
During the early morning hours of January 8, 1994, a fight broke out at a party at Sonny’s Place in Union Chapel. In order to stop the fighting, an individual named Michael Clemons fired at least one shot from his pistol at the ceiling, and the fighting stopped. Hearing the shots, appellant Mitchell kicked in the door at Sonny’s Place and brandished a fully automatic Mac II nine millimeter pistol. According to one witness, he said: “You . . . want to play bad, I’m the baddest thing around.” He started shooting and sprayed the ceiling and wall with gunfire. According to Shalla Criswell, she heard the shooting stop but when she and Felicia Payne came to the bedroom door, Mitchell opened fire again. Shalla Criswell was wounded in the side, and Felicia Payne was shot in the abdomen and later died as a result of that wound. According to Criswell, after the shooting Mitchell said: “I got the bitch,” referring to Felicia Payne.
During a mental health evaluation before trial, Mitchell claimed that he had been possessed by a demon at the time of the shooting. He was found fit to stand trial. At trial, he admitted shooting the victims but offered a defense. He claimed that he was inside Sonny’s Place when a door slammed, and he felt the gun go off. He did not remember firing it himself. He blamed his memory loss on intoxication. He was convicted of first-degree murder, first-degree battery, and aggravated assault and received 40 years, 20 years, and 6 years, respectively. The circuit court ordered that the sentences be served consecutively.
Mitchell asserts that there was insufficient evidence to support his conviction for first-degree murder, and we consider this point initially, as is our practice. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Mitchell has failed to. preserve this issue for our review due to a lack of specificity in his motion for a directed verdict following the State’s case. He merely stated in general terms that he did not believe that there was sufficient evidence to justify the charge. We set a bright line rule in Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), and held that a motion for directed verdict in a criminal case must include the specific ground for the motion. In Walker, we quoted from earlier authority that a directed verdict motion must be sufficiently specific to apprise the circuit court of the particular point raised. See Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), quoting Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). Accordingly, we will not.consider this point.
Mitchell next contends that the circuit court erred in finding him competent to stand trial. A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is on that defendant. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993) (substituted opinion on denial of rehearing). The test for determining if an accused is competent to stand trial is whether he is aware of the nature of the charges against him and is capable of cooperating effectively with his attorney in the preparation of his defense. See Ark. Code Ann. § 5-2-302 (Repl. 1993); see also Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). In Mauppin, we stated:
We have said that in order to be competent to stand trial an accused must have the capacity to understand the nature and object of the proceedings brought against him, to consult with counsel, and to assist in the preparation of his defense. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Upon appellate review of a finding of an accused’s fitness to stand trial, the appellate court will affirm if there is substantial evidence to support the finding of the trial court. Id.
314 Ark. at 567, 865 S.W.2d at 271.
Mitchell was evaluated in 1994 by a team headed by Dr. John Anderson, a psychologist with the Mental Health Services Division of the Arkansas Department of Human Services. He was found to be of average or low intelligence but able to understand the legal proceedings against him and to assist effectively in his own defense. The evaluation noted that other than Mitchell’s own assertion that he was possessed by a demon at the time of the shooting, there were no other symptoms of a mental disorder at the time of the shooting. Tests were also administered, and Dr. Anderson concluded that the results of the Minnesota Multiphasic Personality Inventory-2 test were inconclusive in that Mitchell either did not read the questions, randomly answered them, or answered them in such a way as to over-report symptoms. Dr. Anderson stated during the competency hearing that Mitchell told him that there was a seven to eight minute gap in his memory during the shooting incident which might have been caused by a demon. Dr. Anderson concluded that Mitchell was competent to stand trial.
Mitchell offered no expert testimony to rebut these opinions. We conclude that substantial evidence supports the circuit court’s ruling of competency to stand trial.
For his third point, Mitchell, who is black, argues that the makeup of the jury venire did not represent a fair cross section of the community. To support his contention, he points to the fact that when the circuit clerk first called 224 jurors for the venire only 35 reported, and when the clerk followed this with a call of 112 jurors, only 26 reported. In his motion to the circuit court, defense counsel emphasized that the venire contained only 3 or 4 black jurors which was disproportionately low for the racial makeup of Conway County where Union Chapel is located.
The State maintained that the venire was randomly selected from the voter registration list, but defense counsel countered:
I know how that system works, but when they write in they have work hardships, illnesses, don’t answer or respond to their letters, then it’s not a random selection, it gets to be very selective because it boils down to just a few people that (sic) are interested enough in our system of government and our judicial system to serve on a jury.
The circuit court then called the circuit clerk, Carolyn Gadberry, who testified that there was no way to tell the racial makeup of the venire called from a voter list. The circuit court denied the motion to quash the venire.
Mitchell had the burden of proving the systematic exclusion of members of his racial group from the venire. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). To make a prima facie showing of systematic exclusion, he had to establish (1) the group allegedly excluded was a distinctive group in the community; (2) the representation of this group in the venire was not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation was due to systematic exclusion. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). Only after he made his prima facie case by establishing these three elements could the burden shift to the State to justify its procedure. Sanders v. State, supra. When the jury venire is drawn by random selection, the mere showing that it is not representative of the racial composition of the population will not make a prima facie showing of racial discrimination. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993); Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).
In the instant case, there was no dispute that blacks represented a distinctive group in the community. However, Mitchell did not establish the second and third elements of the Sanders test. He failed to offer statistical proof of the racial composition of the community or of the venire. Furthermore, he completely failed to offer evidence of systematic exclusion. As a result, there was no prima facie case, and, therefore, the burden never shifted to the State to justify its procedure. We further note that two blacks sat on his jury. The circuit court correctly denied his motion to quash.
Mitchell next maintains that the circuit court erred in failing to make a sensitive inquiry into the circumstances surrounding his Batson challenge. During voir dire, the State sought to strike a black juror, Carolyn Hervey, for cause. Ms. Hervey stated on voir dire that she was related to Bryan Hervey, a State witness, by marriage, as well as being related to State witnesses Dejuan and Michael Clemons. Ms. Hervey admitted that she was their aunt. Michael Clemons, at one point, was a co-defendant in this action. Ms. Hervey stated, nevertheless, that she would not have a problem sitting on the jury even though her decision would be partially based on her relatives’ testimony.
The prosecutor moved to strike Carolyn Hervey for cause based on her kinship with one of the former co-defendants and her suspected knowledge of the facts of the case. The defense retorted that Ms. Hervey stated that she could be objective in the case. The circuit court denied the motion to strike for cause. The State then used a peremptory challenge to strike Ms. Hervey, and the defense raised a Batson objection. The court ruled that there was a sufficient basis for the State to use one of its challenges.
This court has stated the procedures to be followed when a Batson objection is raised:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993); see also Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). This court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a circuit court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.
In the matter before us, Mitchell did not make a prima facie case. He failed to raise an inference of discrimination or to prove a disproportionate exclusion of blacks from the jury or a pattern of strikes. First, it is unclear from the record which party excluded which jurors, except for Juror Hervey. Secondly, the fact that one black member is struck from the jury, by itself, is not sufficient to make a prima facie case.
Moreover, we again observe that two blacks were actually seated on the jury in this case. In Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), this court concluded that the presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant. This court has also stated that the best answer the State can have to a charge of discrimination is to point to a jury which has black members. Gilland v. State, supra; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). And, finally, even if a prima facie case had been proven, the State’s explanation for the challenge was racially neutral, and the circuit court was well within its discretion to deny the Bat-son challenge.
Mitchell then contends that the circuit court erred in failing to exclude the victim, Shalla Criswell, from the courtroom during the testimony of other witnesses because she had given prior inconsistent statements regarding the events on the night of the shooting. The Rule (Ark. R. Evid. 615) was invoked by Mitchell in this case, and the circuit court ordered the exclusion of witnesses during the course of testimony from other witnesses at trial. Ark. R. Evid. 616 provides that “[notwithstanding any provision to the contrary” the victim of a crime shall have the right to be present during the trial of the offense. As we said in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), Rule 616 was added to the Rules of Evi dence by Act 462 of 1985, and we adopted the rule in that opinion. We noted that the presence of a victim in the courtroom throughout the trial conceivably could put the fairness of the trial in jeopardy under some circumstances, but that that was not the case in Stephens. Nor has Mitchell succeeded in showing us how fairness was jeopardized in his trial by the presence of one of his victims. We conclude that the circuit court did not err by permitting Shalla Criswell to attend Mitchell’s trial.
For his final argument, Mitchell contends that the admission into evidence of the nude autopsy photograph of Felicia Payne was prejudicial to his case and constituted error by the circuit court. This point is not preserved for our review in that the photograph at issue is not included in either the record of this matter or the abstract of testimony and evidence in Mitchell’s briefs. It is impossible for this court to determine the degree of prejudice if the photograph in question is not before us. See Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980).
Affirmed. | [
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Robert L. Brown, Justice.
Appellant Dr. M. Munir Zufari appeals a judgment barring his claim for breach of contract on limitations grounds. Zufari had sued appellee Architecture Plus and those persons who were partners during the time of the events in question — appellees Paul Hill, Michael G. Johnson, and Anthony Leraris. Zufari contends on appeal that the complaint was timely filed because the cause of action did not accrue until the project was substantially completed and, further, that the trial court erred in concluding that his request for arbitration was also barred by time. We disagree, and we affirm the judgment.
On August 3, 1993, Zufari filed his • complaint against Architecture Plus and the other appellees. He alleged that on or about September 1, 1987, he and Architecture Plus entered into a contract where Architecture Plus would design a medical clinic which would contain an ambulatory surgical center. Under the terms of the agreement, Architecture Plus was to design the facility according to Health Department regulations, prepare construction documents, and assist in the administration of the construction contract. The complaint asserted that after substantial completion of the facility, the Health Department refused to certify the project due to design defects. As a result, Zufari was forced to incur the additional expense of hiring another architectural firm to modify the design. The complaint further alleged that Zufari relied on Architecture Plus to make certain that the building complied with Health Department requirements. The complaint also contains a request for the trial court to order arbitration, as provided in the contract. In an amended complaint, Zufari sought damages in the amount of $114,742.38. Architecture Plus filed a counterclaim and alleged that Zufari owed it a balance of $9,874.95 for services rendered.
Architecture Plus and the appellee partners answered, raising the affirmative defense of statute of limitations, and moved to dismiss Zufari’s complaint on the same grounds. A hearing was held on the affirmative defense, and proof was presented. Paul Hill, who was previously a partner in Architecture Plus, testified that his firm was hired by Zufari to construct the medical clinic and that the first design was completed on November 23, 1987, and submitted to the Health Department for approval. In a return letter dated December 4, 1987, the Health Department informed Architecture Plus that in order to license the facility, the design would have to incorporate these changes:
1. Flip-flop O.R. [operating room] and vascular lab.
2. Provide a sterile barrier and a traffic route for surgery personnel to get from street clothes, to a gowning space, and into the surgery corridor.
3. Smooth washable ceiling and walls in the anesthetizing location and in the surgery corridor. Lay-in ceiling is not permitted in the O.R.
4. Provide for dumping a bed pan without traveling through other functional areas.
5. Tell us how and where you will incinerate excised tissue.
6. Label preop and postop space.
7. Make the O.R. 250 square feet in area.
8. Provide a smoke barrier.
When you get your plumbing approval, this office approves construction to begin. Note that this does not constitute city approval. To be licensed and certified as an ambulatory surgery center, you must satisfy our requirements.
Zufari was shown as having been sent a copy of the letter. The court permitted Hill to testify about the contents of the letter over hearsay objections by Zufari.
Hill testified that the absence of a sterile corridor is what prevented the facility from being licensed. He further testified that Zufari was aware of the Department’s rejection of the design in December 1987. Hill continued to communicate with the Health Department during the construction of the building. On December 22, 1987, Hill presented Zufari with a bill from Architecture Plus which showed that the design phase was 100% complete and that the construction documents and working drawings were 100% complete.
Hill also testified that on January 26, 1988, he submitted revised plans of the Zufari clinic to the Health Department in an effort to incorporate the required changes. These were the last plans that Hill prepared on the facility, although he made minor design changes later. Over Zufari’s objection, the trial court admitted a reply letter from Glenn Anderson, a construction engineer with the Division of Health Facility Services of the Health Department. In the letter dated February 4, 1988, Anderson wrote:
We did fail to point out that the type construction required does include steel door frames. Steel door frames with an integral steel stop across the top and down both sides are required.
I have noted on my sheet A2 of eight (8) that Hall-10 (the surgery corridor) is “off limits” to the public and that the gowning alcove is just north of door 21B with scrub sink just south of that door in the surgery corridor.
We must have Dr. Zufari’s written policy on how he will get proper incineration of all infectious, pathological and anatomical waste before we can recommend licensing of his facility. He must also give us a signed agreement with a hospital that will give him back-up service.
A notation at the bottom of this letter showed a copy going to Zufari.
On September 22, 1988, Hill wrote Zufari that the project was substantially completed. The medical clinic had opened for business on September 16, 1988. Hill testified that Zufari had expressed dissatisfaction with his work during a walk-through of the facility in December 1988. On February 15, 1989, Hill left Architecture Plus, and Hill’s work for Zufari ended.
Anthony Leraris, another partner with Architecture Plus, testified that Zufari’s contract was a standard form contract used by the firm and that it contained an arbitration provision. Leraris testified that he never received any request for arbitration from Zufari. On March 15, 1989, Leraris wrote the director of the Health Department, Dr. Joycelyn Elders, and complained that Glenn Anderson had approved the plans for the Zufari medical clinic by letter dated February 4, 1988, but that his successor, Tom Saunders, had later denied them. In the letter, Leraris blamed personnel turnover in the department for the denial of the license. Leraris testified that he did not become aware of any problems until after the medical clinic was substantially complete. As Leraris understood the problem, the addition of steel doors to the substerile surgery corridor would have met the Health Department’s demands. Zufari never consented to the addition of the steel doors, according to Leraris, and Hill never revised the plans to include steel doors.
The Health Department responded in a letter to Zufari dated March 30, 1989, regarding license denial:
Our office has reviewed our position regarding license denial at your facility and wish to offer further comments. We feel that the only subject sufficient to limit acceptance is the need for a distinguished sub-sterile (surgery) corridor. The surgery corridor must be physically separated by walls or doors from adjacent physician office space. The physical barrier with appropriate signage allows the necessary limited access to the corridor and proper aseptic technique with regards to cross contamination.
Throughout correspondence in our files, there are references to the need for a sterile barrier before entering into the surgery corridor. Item #2 of our letter dated December 4, 1987 to Architecture Plus was the first reference.
Our letter to Architecture Plus dated February 4, 1988, reaffirms our position that the surgery corridor is to be “off limits” to the public. The “public” would be extended to be anyone not properly attired to enter the corridor. Due to the arrangement of the facility, the corridor can not be considered “off limits” properly without physical separation.
The trial court first refused to bar Zufari’s complaint for limitations reasons. A motion for reconsideration was filed by the appellees, and after a second hearing, the trial court ruled that the statute of limitations did bar the cause of action for breach of contract. In its order, the court found that Zufari’s cause of action against Architecture Plus accrued on December 4, 1987, when the Health Department initially rejected the design.
Zufari’s first four points on appeal all relate to his claim that the trial court erred in dismissing his complaint on the basis of limitations. He argues that his complaint was timely filed under the statute of limitations codified at Ark. Code Ann. §16-56-112 (1987). He further argues that notwithstanding the clear application of section 16-56-112, his complaint is also timely under Ark. Code. Ann. § 16-56-111 (b) (Supp. 1995), because under the contract Architecture Plus was to guard against defects until issuance of the certificate for final payment or 60 days after substantial completion. Architecture Plus counters that § 16-56-111(b) applies exclusively, and that under that statute, the cause of action accrued on December 4, 1987, when the Health Department rejected the plans.
The first statute of limitations in question, § 16-56-111(b), reads:
(b) Actions on writings under seal shall be com menced within five (5) years after the cause of action shall accrue, and not afterward.
Ark. Code Ann. § 16-56-111 (b) (Supp. 1995). Section 16-56-112 reads in part:
(a) No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction . . . shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
(f) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, ....
Ark. Code Ann. § 16-56-112 (1987).
This court had occasion to interpret § 16-56-112, as it related to other statutes of limitation, in East Poinsett County School Dist. No. 14 v. Union Standard Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990). There, the issue was a breach of an oral contract to repair a gymnasium roof and the applicable statute of limitations. The plaintiff filed the complaint beyond the time of the 3-year statute of limitations for breach of an oral contract and sought to extend the limitations period by means of § 16-56-112. We stated:
Before the enactment of § 16-56-112, a third party could sue architects and people in the construction and building field at any time after completion of work, so long as the third party brought suit within the applicable statute of limitations period commencing from when an injury or breach occurred. In recognition of this fact, states, including Arkansas, adopted statutes to limit the time within which actions could be brought against persons in the construction and building field. Section 16-56-112, by its own terms, is not meant to extend existing statutes of limitations.
304 Ark. at 33-34, 800 S.W.2d at 417. Hence, we held that the three-year limitations period for oral contracts applied, as did § 16-56-112. We added:
But, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action.
304 Ark. at 34, 800 S.W.2d at 417.
Section 16-56-111(b) is the applicable statute of limitations for written contract actions. See Ernest F. Loewer, Jr. Farms, Inc. v. National Bank of Arkansas, 316 Ark. 54, 870 S.W.2d 726 (1994). A written contract is what is involved in this case. In light of East Poinsett County School Dist., the existence of § 16-56-112 does not extend the statute of limitations under § 16-56-111(b) or otherwise affect its applicability. We hold that § 16-56-111 (b) is the applicable statute of limitations in the case before us.
The issue then becomes a factual one. Did Zufari’s cause of action against Architecture Plus accrue before August 3, 1988, which was five years before his complaint was filed? We hold that it did. In routine contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). The test for determining when a breach of contract action accrues is the point when the plaintiff could have first maintained the action to a successful conclusion. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). We stated in Dupree:
As we stated on the question of statute of limitations for contracts, a cause of action “accrues the moment the right to commence an action comes into existence.” Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). And if the right of action depends upon some contingency or condition precedent, the cause of action accrues and the statute of limitations begins to run when the contingency occurs or the condition precedent is complied with.
300 Ark. at 191, 777 S.W.2d at 858.
Using these principles, the ultimate question to be answered in this case is whether the submission of the defective design on November 27, 1987, and its rejection by the Health Department on December 4, 1987, constituted a material breach. Section 2.3.2 of the contract states:
2.3.2 The Architect shall assist the owner in connection with the Owner’s responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the project.
This section requires the architect to assist in getting government approval of the project. Without approved plans, the facility would not be licensed, and without licensure, the ambulatory surgery center could not operate. See Ark. Code Ann. § 20-9-213 (Repl. 1991). Acquiring government approval was, therefore, a material element of the contract, and that approval was denied as of December 4, 1987, when the design work was 100% complete. When performance of a duty under a contract is contemplated, any non-performance of that duty is a breach. Restatement (Second) of Contracts § 235 (2) (1981).
We conclude that the trial court correctly found that the relevant date for accrual of the cause of action for breach was the date the plans were rejected by the Health Department — December 4, 1987. On that date, the cause of action was complete, and Zufari was entitled to sue for breach. He chose not to do so but, rather, chose to allow Architecture Plus to attempt to rectify the problem. The fact that Architecture Plus attempted to mitigate and correct the breach, however, does not alter the fact that a breach had occurred. Zufari did not file suit until August 3, 1993, and the applicable statute of limitations under § 16-56-111(b) had expired well before that date. Thus, the action was time-barred.
Zufari did object to the introduction of the Health Department’s December 4, 1987 letter at the hearing on hearsay grounds, but the trial court admitted it under the business record exception to the hearsay rule. Architecture Plus concedes that this was error, but argues that the error was harmless. We agree with Architecture Plus that any error was rendered harmless, primarily because admission of the letter was cumulative to other evidence admitted without objection. See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Williams v. Southwestern Bell Tel Co., 319 Ark. 626, 893 S.W.2d 770 (1995). For example, Hill testified that Zufari knew about the Health Department’s rejection of the design work in 1987.
For his final point, Zufari urges that the trial court erred in concluding that Zufari’s claim for arbitration was also time-barred. Zufari made a request for arbitration in his complaint dated August 3, 1993. Section 7.2 of the contract between Zufari and Architecture Plus provides:
In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by the applicable statutes of limitations.
Under our analysis, as set forth above, the request for the trial court to order arbitration was also late.
Affirmed.
Jesson, C.J., not participating. | [
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Donald L. Corbin, Justice.
Appellant, Joe Robson, appeals the order of the Washington County Circuit Court granting summary judgment to appellee, Robert R Tinnin, D.D.S., individually and d/b/a Family Dental Center, on appellant’s claim for dental malpractice. Jurisdiction of this appeal was properly certified to this court as it involves a question about the law of torts. Ark. Sup. Ct. R. l-2(a)(16). Appellant raises four points for reversal of the summary judgment, none of which has merit. Therefore, we affirm.
Appellant filed a complaint alleging he had contracted with appellee in Fayetteville, Arkansas, for appellee to repair teeth on appellant’s lower jaw by means of an implant. In the complaint, appellant did not challenge the installation of the implant. Rather, he claimed appellee failed to carefully “change” the implant and failed to warn him of the risks involved. Significantly, appellant did not allege that appellee was negligent for failing to treat a fractured bicuspid, although he did allege that appellee’s negligence caused him to lose healthy teeth.
After appellant answered appellee’s interrogatories, appellee moved for summary judgment on the basis that appellant had not offered proof of essential elements of his case, that being expert testimony to establish the standard of care and breach thereof. Relying on Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991), the trial court agreed with appellee that expert testimony was required to establish the standard of care and appellee’s breach thereof after appellee had made a prima facie case that the standard of care had been met, and further agreed that appellant had failed to produce any expert testimony on those two elements of his malpractice claim. The trial court therefore granted appellee’s motion for summary judgment.
Appellant’s first point for reversal is that appellee did not meet his burden of showing he was entitled to summary judgment because the affidavits presented in support of the motion were conclusory and therefore insufficient to withstand summary judgment. It is well settled that affidavits that are conclusory rather than factual are insufficient to support a motion for summary judgment. Swindle v. Lumbermens Mut. Casualty Co., 315 Ark. 415, 869 S.W.2d 681 (1993).
According to appellee’s motion, the two dental experts appellant identified in his answers to interrogatories were Dr. Henry Matthews, D.D.S., of Fayetteville, Arkansas, and Dr. Joe Mas-sad, D.D.S., of Tulsa, Oklahoma. In his motion, appellee pointed out that, according to appellant’s answers to interrogatories, Dr. Massad had not yet presented appellant with any written reports and had not yet formed an opinion about the case. Attached to appellee’s motion were an affidavit from Dr. Matthews denying that he had ever agreed to testify as an expert in this case on the issues of the applicable standard of care of dental treatment in Fayetteville and appellant’s alleged breach thereof, and appellee’s own affidavit to the effect that he had not been negligent in treating appellant.
Appellant’s first argument is without merit. Appellee concedes that his own affidavit is largely conclusory. However, Dr. Matthews’s affidavit contains statements of fact that he has not been asked to testify as to the applicable standard of care nor as to the breach thereof in this case. Dr. Matthews further averred that he found no indication that appellee’s treatment of appellant fell below the applicable standard of care. The only other dental expert identified by appellant, Dr. Massad, had not yet formed any opinions about this case. Thus, the foregoing factual statements in Dr. Matthews’s affidavit were sufficient to make a prima facie case and support appellee’s motion for summary judgment.
For his second point for reversal, appellant contends the trial court erred in ruling that his affidavit, which was attached to his response to appellee’s motion, contained hearsay. Appellant stated in his affidavit that he suffered a fractured bicuspid while under appellee’s treatment, that appellee took no action to repair the fractured tooth, and that Dr. Matthews informed him about the appropriate treatment for the fractured bicuspid, which Dr. Matthews informed him, appellee should have followed. The trial court did not consider appellant’s affidavit, ruling that it contained hearsay and was therefore in violation of ARCP Rule 56(e), which requires that affidavits set forth facts admissible in evidence. Appellant argues that Dr. Matthews’s reported statements pertaining to a fractured bicuspid are not hearsay and are admissible as prior inconsistent statements under A.R.E. Rule 801(d)(1). Appellant argues further that when his affidavit is considered, he has demonstrated that issues of material fact, namely the applicable standard of care and appellee’s breach, are in dispute.
Appellant does not cite any authority or offer any convincing argument that Rule 801(d)(1) is applicable to affidavits presented in summary judgment proceedings. Rule 801(d)(1) is expressly applicable to declarants who testify at trial or hearing and are subject to cross-examination. In any event, we need not decide the applicability of Rule 801(d)(1) to this summary judgment case because, as the trial court recognized, even when appellant’s affidavit is considered, it does not demonstrate a disputed issue of material fact. Quite simply, a statement that a dentist should have given a particular treatment or taken a particular course of action is not the equivalent of stating the applicable standard of care and breach thereof. Moreover, appellant’s affidavit is completely silent regarding the standard of care for the act of negligence alleged in his complaint — the failure to adequately effect the change of an implant for his lower jaw and the failure to warn of the risks involved — and the complaint is completely silent on the fractured bicuspid discussed by Dr. Matthews.
Appellant’s third point for reversal is that the affidavit of Dr. Massad, which was attached to appellant’s response to appellee’s motion, was sufficient to withstand the motion for summary judgment. Included in this argument is a “reminder” to this court that appellant’s claim was for appellee’s omissions in treating the fractured bicuspid. Again, we emphasize that the words “fractured bicuspid” do not appear in appellant’s com-j plaint. It may well be that a fractured bicuspid was the reason for the change of the implant. However, there is nothing in this record that remotely suggests that relationship. Because Dr. Massad’s affidavit speaks entirely in terms of available treatment for a fractured bicuspid, it is insufficient to withstand a motion for summary judgment on this complaint. In addition, Dr. Massad’s affidavit is insufficient to withstand the summary judgment because it simply states that there is treatment available for a fractured bicuspid, but does not state that such treatment is the standard of care applicable to this case so as to contravene Dr. Matthews’s affidavit on this point.
Appellant’s fourth and final point for reversal is that expert testimony was not required in this case. Appellant argues that a fractured tooth is much like a fractured arm inasmuch as it is common knowledge that some form of treatment is available. It is well settled that a plaintiff must present expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowl edge, and when the jury must have the assistance of experts to decide the issue of negligence. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).
Appellant’s final argument is entirely without merit. First, as we have previously emphasized, appellant’s complaint does not allege that appellee was negligent in failing to treat a fractured tooth. Second, the argument assumes that simply because treatment is available for a medical injury, it follows that it is negligence for a medical care provider not to provide the treatment. That is not and has never been the law of medical malpractice. Rather, to sustain a claim for medical malpractice a plaintiff must prove, among other elements, the applicable standard of care and the defendant’s breach thereof. The standard of care applicable to a case is defined by statute as “the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality.” Ark. Code Ann. § 16-114-206(a)(l) (1987). The statute plainly requires more than simple proof that treatment is available. Third, the argument assumes that the implied connection between a fractured bicuspid and the need to change appellant’s dental implant is a matter of common knowledge. Suffice it to say that matters relating to the changing of dental implants and treatment of fractured teeth are not matters of common knowledge. Cf. Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978) (quoting Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), and stating that matters of common knowledge include a surgeon’s failure to remove a sponge before closing an incision or to sterilize his instruments prior to operating).
Appellant raised an additional point in the introductory portion of his argument which is that the burden of showing entitlement to summary judgment required appellee to offer proof on the issue of proximate causation. To support this argument, appellant relies on a statement from Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994), citing Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980), that the moving party’s burden in a summary judgment proceeding cannot be shifted when there is no offer of proof on a controverted issue. Collyard was a slip and fall case in which the defendant’s motion for summary judgment was not supported by an affidavit or any evidence that the defendant was not negligent. In that respect, Collyard is distinguished from this case and is not controlling. See Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) (explaining that Collyard holds when the proof supporting a motion for summary judgment does not establish a prima facie case, there is no duty on the opposing party to meet proof with proof). In this case, appellee’s motion for summary judgment was supported by affidavit revealing that appellant could not prove two essential elements of his claim. Appellee met his burden of proving a prima facie case for summary judgment by showing that appellant had no expert to testify to the applicable standard of care and breach by appellee. Thus, the burden shifted to appellant to show that a disputed issue of fact existed as to those two elements. Appellant’s failure to do so excused the need for appellee to show a lack of proof on the element of proximate causation.
On appeal, we need only decide if the granting of summary judgment was appropriate based on whether the evidence presented left a material question of fact unanswered. Reagan, 305 Ark. 77, 805 S.W.2d 636. The burden of proving there is no genuine issue of material fact is upon the moving party, and all proof submitted is viewed favorably to the opposing party, with all doubts and inferences resolved in the favor of the opposing party. Brunt, 318 Ark. 427, 885 S.W.2d 894. Once the moving party makes a prima facie showing of entitlement to summary judgment, the opposing party must meet that proof with proof that a genuine issue of material fact exists. Reagan, 305 Ark. 77, 805 S.W.2d 636.
In Reagan, this court effectively held that, when expert testimony is required for proof of a plaintiff’s claim for medical malpractice, and the defendant demonstrates the plaintiff’s failure to produce the requisite expert testimony, then the defendant has demonstrated that no genuine issues of material fact exist for presentation to a jury and is therefore entitled to summary judgment as a matter of law. On the record before us, appellee has demonstrated that no material issues of disputed fact exist and that he is entitled to summary judgment as a matter of law. Accordingly, we affirm the granting of summary judgment.
Roaf, J., not participating. | [
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Bradley D. Jesson, Chief Justice.
Perrodin filed suit against Rooker alleging that Rooker had committed the torts of malicious prosecution and outrage. The trial court dismissed the action. We affirm the trial court’s decision.
This case arises out of an altercation which took place between the parties on February 1, 1991, on a Little Rock parking lot. The complaint which is the subject of this appeal is silent as to the facts giving rise to the incident. However, the pleading does reveal that, at some point after the altercation took place, Rooker swore out an affidavit at the prosecutor’s office which resulted in Perrodin being charged with aggravated assault and second degree battery. Perrodin was arrested, appeared in municipal court, and was bound over to circuit court. The case was submitted to a circuit court jury and Perrodin was acquitted of the charges.
Two lawsuits followed. The first was a negligence action filed by Rooker in Pulaski County Circuit Court, Seventh Division. Rooker alleged that he suffered injuries which were proximately caused by Perrodin’s negligence. The second lawsuit was filed by Perrodin in Pulaski County Circuit Court, Fifth Division, and attempted to set forth causes of action for malicious prosecution and the tort of outrage. Rooker moved to dismiss on three grounds: 1) the case should have been pursued as a counterclaim in the negligence action; 2) the complaint failed to state facts upon which relief could be granted; and 3) Rooker had probable cause as a matter of law to swear out the warrant against Perrodin. To support his argument on the third point, Rooker attached a municipal court certificate regarding a finding of probable cause, and two pages of testimony which, according to Rooker, was given by an officer “at the probable cause hearing.”
The cases were eventually consolidated, with Perrodin’s case being treated as a counterclaim. Once consolidated, the motion to dismiss was granted. The trial judge gave two alternative reasons for his ruling. He stated that dismissal of the complaint was proper under ARCP Rule 12, or that partial summary judgment could be granted pursuant to ARCP Rule 56. In reviewing the judge’s order, we note that he considered materials outside the pleadings to reach his finding that probable cause existed as a matter of law, thereby providing a basis for partial summary judgment. Alternatively, he found that a motion to dismiss both counts was proper in that the complaint failed to state sufficient facts to support a cause of action for either malicious prosecution or outrage. Because we agree with the trial judge’s conclusion that Perrodin’s pleading failed to state facts upon which relief could be granted, we will treat this case as a review of the ruling on the motion to dismiss and will not reach that part of the court’s order dealing with partial summary judgment. We also note that the negligence action was subsequently dismissed with prejudice, so the rights of all parties to the case have been concluded.
Perrodin’s first amended complaint, which was later converted to a counterclaim, reads, in pertinent part, as follows:
The Defendant filed an affidavit with the Pulaski County Prosecutor’s office claiming he had been assaulted and battered by the Plaintiff. The charges of the Plaintiff were false and the defendant failed to provide fair and accurate information to the prosecutor resulting in the charges being filed. Had the Defendant provided proper information to the prosecutor a finding of probable cause would not have been made.
The charge was made with malice and intent to harm the Plaintiff.
The Plaintiff was acquitted of the charges brought against him as a result of the affidavit filed by the Defendant. However, the stress of the trial caused Plaintiff to suffer chest pains requiring medical treatment.
The Plaintiff was damaged by the conduct of the Plaintiff [sic] in that he had to hire an attorney and pay legal fees and cost to defend himself, for his medical damages resulting in the stress and chest pains which were the direct result of the stress of the pending trial and mental anguish.
The actions of the Defendant in pursuing this course of action against the Plaintiff went beyond the scope of conduct considered reasonable by society at large to such an extent it should be considered outrageous.
The Plaintiff suffered mental anguish and pain beyond what a reasonable person could be expected to endure as a result of the conduct of the Defendant.
Arkansas is a state which requires fact pleading. ARCP Rule 8(a)(1). The pleader must set forth more than mere conclusions. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). A pleading is subject to dismissal if it fails to state facts upon which relief can be granted. ARCP Rule 12(b)(6). A pleading is also deficient if it fails to set forth facts pertaining to an essential element of the cause of action. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). When we review an order granting a motion to dismiss, we treat the allegations in the pleading as true and view them in a light most favorable to the party who filed the pleading. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994).
Two of the essential elements of malicious prosecution are malice and absence of probable cause for the proceedings instituted against the plaintiff. Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995); Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). Perrodin’s pleading fails to set forth any facts showing either of these elements. A mere statement that the defendant’s conduct was malicious is not sufficient. The mere statement that Perrodin was acquitted does not equate to a lack of probable cause. Further, the pleading sets forth no facts pertaining to the lack of probable cause or the alleged falsity of the information given to the prosecutor. See Hollingsworth v. First Nat’l. Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).
Likewise, Perrodin failed to state sufficient facts to support his cause of action for outrage. In the case of Cordes v. Outdoor Living Ctr., 301 Ark. 26, 781 S.W.2d 31 (1989), we set out the elements of this tort: 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 and utterly intolerable in a civilized community; 3) the conduct was the cause of the plaintiff’s distress; and 4) the plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it. See also Hollingsworth, supra.
Although Perrodin’s pleading touches on these elements, it fails to set forth the facts which gave rise to these elements. It merely concludes that Rooker’s conduct was outrageous. In particular, there are no facts which show that Rooker intended to inflict emotional distress on Perrodin, or should have known that his actions would likely cause emotional distress.
Based upon the foregoing, we uphold the trial court’s decision to grant the motion to dismiss. As in Hollingsworth, since the dismissal was without mention of prejudice and Perrodin elected to appeal rather than to plead further, his complaint is considered dismissed with prejudice.
Affirmed. | [
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