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David Newbern, Justice.
Teller Connie Fay Vondran was stabbed and killed in the course of a robbery of Delta State Bank in Elaine. Shortly after the Bank’s alarm alerted the police, William F. Bowen was arrested in a nearby bean field. Mr. Bowen was convicted of capital felony murder and aggravated robbery and sentenced to death.
The State has raised an issue concerning the timeliness of the appeal. We consider the appeal to be timely. The judgment was entered January 15, 1993. Mr. Bowen filed a motion for a new trial on February 15, 1993. Pursuant to Ark. R. Crim. P. 36.22, a criminal defendant has the same time to file a new trial motion as for filing a notice of appeal, i.e., 30 days. Ark. R. App. P. 4(a). The 30th day from the judgment fell on February 14, 1993, which was a Sunday, thus extending the date until Monday, February 15, 1993. The Trial Court did not rule on the motion, so it was deemed denied March 17, 1993. Ark. R. App. P. 4(c). Mr. Bowen’s notice of appeal was filed March 29, 1993, and thus it was within the 30-day period prescribed in Ark. R. App. P. 4(c).
Mr. Bowen has raised 19 points of appeal. As the State has pointed out, we must reverse and dismiss the aggravated robbery conviction because it is a lesser felony included in capital felony murder. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).
We affirm the capital murder conviction, but we must reverse the death sentence and remand the case for resentencing. The reversal of the sentence is caused by error in instructing the jury with respect to a statutory aggravating circumstance, which was applied by the jury, although the statute was not in effect at the time the crime was committed.
The sufficiency of the evidence against Mr. Bowen is not an issue. We will recite some of the facts proven and add others as we address Mr. Bowen’s points of appeal in the order he has presented them in his brief.
Mr. Bowen’s arrest occurred because a citizen had seen someone running toward the bean field and so informed Chief Lawman. Chief Lawman read the Miranda rights to Mr. Bowen upon arresting him. Mr. Bowen made no response to indicate that he understood or waived his rights. Chief Lawman asked Mr. Bowen where the money and knife were. Mr. Bowen responded that he had dropped the money while crossing a ditch and he did not have the knife.
From the bean field, Mr. Bowen was transported to the Elaine City Hall to await the arrival of deputies from the Phillips County Sheriff’s Department. Shortly thereafter, Mr. Bowen made inculpatory statements to Phillips County Sheriff Kenneth Winfrey and later to FBI agents.
The Trial Court ordered a mental evaluation of Mr. Bowen, which was performed in December 1990 by Dr. Heisler at the Phillips County Jail. Dr. Heisler determined that Mr. Bowen had dissociative disorder, significant depression, and a history of psychiatric treatment. He recommended further evaluation at the State Hospital. Just prior to his transfer to the State Hospital, Mr. Bowen attempted suicide by hanging himself with a bed sheet at the Phillips County Jail.
The State Hospital evaluation occurred during January and February 1991. The doctors concluded Mr. Bowen suffered from Multiple Personality Disorder (MPD) and recommended he be found not competent to stand trial. Mr. Bowen’s evaluation at the State Hospital also revealed that during the six years before his arrest, he was diagnosed as suffering from schizophrenia, adjustment disorder, depression, and borderline personality disorder. In addition, his doctors discovered that he had made several suicide attempts. After the State Hospital found him incompetent, Mr. Bowen was discharged and returned to jail in April 1991, whereupon he made another suicide attempt.
In June of 1991, the Trial Court adjudicated Mr. Bowen incompetent and sent him back to the State Hospital for treat ment. During an eleven-month stay, Mr. Bowen’s doctors observed in Mr. Bowen a number of distinct personalities, but concluded in a report dated April 17, 1992, that his competency had been restored. In that same report, the doctors also rendered the opinion that Mr. Bowen was unable to appreciate the criminality of his act at the time the crime occurred. Mr. Bowen was adjudicated competent to stand trial on July 31, 1992.
In the period between July 31, 1992, and the date jury selection began, December 7, 1992, Mr. Bowen’s attorney made several motions requesting further psychiatric evaluation. He also moved for acquittal pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1993). The motions were denied.
At his trial, Mr. Bowen presented an insanity defense through the testimony of experts who evaluated and treated him at the State Hospital, the primary witness being Dr. O. Wendell Hall, III. Dr. Hall discussed the MPD diagnosis and stated, in the State Hospital report, “We concluded ... that he was not able to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” The prosecution answered with the testimony of Dr. Darryl Bruce Mathews. Dr. Mathews questioned the validity of MPD as a diagnosis in general and said he could not understand the statements and reasoning of the State Hospital doctors in reaching the conclusion that MPD caused Mr. Bowen to be unable to conform his behavior to the law. The jury found Mr. Bowen guilty of capital felony murder and sentenced him to death. In reaching their decision on the death sentence, the jury found two aggravating circumstances and two mitigating circumstances. Neither of the mitigating circumstances found by the jury involved Mr. Bowen’s mental health.
Mr. Bowen appeals various rulings made at both the guilt phase and the sentencing phase of his trial.
1. Failure to find or consider mitigation on the basis of mental illness
Arkansas Code Ann. § 5-4-603 (Repl. 1993) permits the imposition of a death sentence by a jury if it unanimously returns written findings of certain aggravating circumstances including the conclusion that they outweigh any mitigating circumstances it may find. Statutory aggravating circumstances are listed in Ark. Code Ann. § 5-4-604 (Repl. 1993), and mitigating circumstances are listed in Ark. Code Ann. § 5-4-605 (Repl. 1993).
Forms to be used in considering and returning its verdict were given to the jury. On Form 1, listing the statutory aggravating circumstances, the jury reported unanimously finding that:
The Capital Murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.
The Capital Murder was committed in an especially cruel or depraved manner.
On Form 2-A, listing the statutory mitigating circumstances, the jury reported unanimously finding that:
The Capital Murder was committed while William Francis Bowen was acting under unusual pressures or influences or under the domination of another person.
William Francis Bowen has no significant history of prior criminal activity.
On Form 3, the jury concluded the aggravating circumstances justified beyond a reasonable doubt a sentence of death, and the verdict of the jury was that Mr. Bowen be sentenced to death by lethal injection. See Ark. Code Ann. § 5-4-603 (Repl. 1993).
The argument on this point has to do with the jury’s failure to find, or even to consider these statutory mitigating circumstances which appeared on Form 2-A, and which are prescribed in § 5-4-605, but which were not checked by the jury as ones which existed in this case:
The Capital Murder was committed while the defendant was under extreme mental or emotional disturbance.
The Capital Murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
a. Failure to find
Mr. Bowen argues the jury should have found those mitigating factors to exist because the evidence of them was overwhelming and uncontradicted. No doubt, there was a great deal of evidence that Mr. Bowen had mental problems in the past. On the other hand, there was Dr. Mathews’s testimony.
Dr. Mathews testified, in addition to his testimony related above, that the MPD diagnosis upon which the report founded its conclusion of lack of ability to appreciate the criminality of the act was “suggested” by the doctors to Mr. Bowen. He testified that the symptoms exhibited by Mr. Bowen fit into the “borderline personality disorder” diagnosis previously applied to Mr. Bowen. Dr. Mathews found some evidence of malingering. While he said he did not think the symptoms displayed by Mr. Bowen were totally artificial or the result of malingering, he concluded there was no evidence of mental impairment in the weeks before the crime.
A jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 223 (1986). Although medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Id. Testimony by experts is to be considered by the jury in the same manner as other testimony and circumstances in the case. Id. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they believe to be true. Id.; Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991).
b. Failure to consider
Mr. Bowen cites a number of cases from around the country in which death penalties have been rejected on appeal because of a jury’s failure to consider mental illness of the accused. E.g., Magwood v. Smith, 791 F.2d 1438 (11th Cir. 1986); Evans v. State, 598 N.E.2d 516 (Ind. 1992). His argument that the jury failed even to consider the evidence of his mental illness is based on the fact that the jury left Form 2-C blank.
Form 2-C lists the statutory mitigating factors having to do with mental illness, quoted above, and they are to be checked if the jury determines unanimously that they did not exist at the time of the murder. The problem with the argument based on Form 2-C is that, although Mr. Bowen’s abstract of the record indicates that the form was submitted to the jury, there is nothing in the abstract to show whether the jury executed it or not. Indeed, we have searched the record in vain for Form 2-C. It is the duty of the appellant to present a record from which we can determine the facts on which he relies for reversal. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 132 (1994).
We cannot say the jury failed to consider the record of Mr. Bowen’s mental illness. Even if the opinions of the doctors at the State Hospital had remained uncontradicted, which they did not, the jury would have been free to disbelieve them and find that punishment of Mr. Bowen should not be mitigated by his mental condition.
2. Application of a statutory aggravating circumstance ex post facto
One of the statutorily prescribed aggravating circumstances unanimously found by the jury was, “The capital murder was committed in an especially cruel or depraved manner.” Mr. Bowen contends it should not have been applied to his case because the law describing that aggravating circumstance had not been enacted at the time the crime was committed.
In Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), we held that a statutory aggravating circumstance using the terms “heinous, atrocious, or cruel” was unconstitutionally vague. In 1991, the General Assembly amended the law to state the current terminology. Ark. Code Ann. § 5-4-604(8) (Repl. 1993). Between 1988 and 1991, Arkansas law did not prescribe as an aggravating circumstance either “heinous, atrocious, or cruel,” or “cruel and depraved” murder. As the crime in this case occurred in 1990, Mr. Bowen argues that the application of the aggravat ing circumstance codified in 1991 violated the ex post facto clauses of the United States and Arkansas Constitutions. U.S. Const, art. I, § 9, cl. 3; art. I, § 10, cl. 1. Ark. Const, art. 2, § 17.
The State argues that Mr. Bowen is procedurally barred from raising this issue on appeal because there was no objection on that basis in the Trial Court. Although the State is correct in its assertion that no such objection was made, this assignment of error comes within a very narrow exception to the rule that this Court will not entertain claims of “plain error” not brought to the attention of the Trial Court.
As reported in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we recognized in Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943), and in Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), that we have not required an objection to a trial court’s failure to bring to a jury’s attention a matter essential to its consideration of the death penalty. We apply that holding here and consider the issue on its merits.
Whether or not retroactive application of the statutory “cruel and depraved manner” aggravating circumstance violates the constitutional prohibition against ex post facto legislation depends upon the nature of the law. If the amendment creating the statutory aggravating circumstance after the commission of the crime is considered “substantive,” then application of it is a constitutional violation. If it is considered “procedural,” there was no error in applying it retroactively to Mr. Bowen’s case. That is the analysis used by the Supreme Court in Miller v. Florida, 482 U.S. 423 (1987), and in Dobbert v. Florida, 432 U.S. 282 (1977).
In Miller v. Florida, supra, the Florida legislature, through an amendment in a “points” system, effectively increased the number of years in the sentence range for certain offenses from a range of three-and-a-half years to four-and-a-half years to a range of five-and-a-half to seven years. The increase occurred after the offense in question was committed but before Miller was tried. In its opinion determining that the new law could not be applied, the Supreme Court said:
Article I of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” .. . Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull, 3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression “ex post facto” “had been in use long before the revolution,” . . . summarized his understanding of what fell “within the words and the intent of the prohibition”:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Id. at 390 (emphasis omitted).
4= * 4=
As was stated in Weaver [v. Graham, 450 U.S. 24 1981)], to fall within the ex post facto prohibition, two critical elements must be present: first, the law “must be retrospective, that is, it must apply to events occurring before its enactment”, and second, “it must disadvantage the offender affected by it.” .. . We have also held in Dobbert v. Florida, supra, that no ex post facto violation occurs if a change does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.”
By way of contrast to Miller v. Florida, supra, the Dobbert case had to do only with whether the judge or the jury made an ultimate decision about imposition of the death penalty. At the time the crime was committed, the Florida law permitted imposition of the death sentence unless a majority of the jurors recommended mercy. At the time of the trial, the law permitted the judge to impose the death penalty if he or she stated in writing reasons based on statutorily prescribed findings. That change was held to be “procedural” only, and thus it was not prohibited as an ex post facto law. The Supreme Court concluded the change in the law actually worked to the benefit of the accused. Previously, the death penalty was “presumed” unless the jury called for mercy, but under the new law the judge was to implement statutory safeguards enacted in the wake of Furman v. Georgia, 408 U.S. 238 (1972).
In Miller v. State, 269 Ark. 341, 603 S.W.2d 430 (1980), an issue was whether there was sufficient evidence in support of aggravating circumstances found by the jury. In upholding the jury’s findings, we said:
One of the reasons these statutes were enacted was to give this court an insight in the thought process of the jury so that we can compare the circumstances of cases involving the death sentence in our effort to avoid any arbitrary and unconstitutional application of the sentence. We do not consider the jury’s findings as separate little verdicts, and we do not require the same degree of proof to sustain a jury finding that an aggravating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.
That expression about our statutory aggravating circumstances is similar to one made a few years later by the Supreme Court in Poland v. Arizona, 416 U.S. 147 (1986), in which it was said that the finding of an aggravating circumstance is not a separate verdict but is a “standard” to guide the jury in its selection of punishment.
In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), we explained the circumstances under which a sentencing law will be considered substantive:
Appellants have cited a number of our cases stating that sentencing provisions are substantive rather than procedural and that the sentencing provisions in effect at the time an offense occurs govern sentencing. Jennings v. State, 216 Ark. 217, 633 S.W.2d 373 (1982); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). However, those cases, and others like them, deal with attempts to apply a harsher sentence than was provided by law at the time an offense was committed, rather than with changes in sentencing procedures.
While the addition of an aggravating circumstance to be considered in determining whether the sentence will be death or life without parole does not guarantee the harsher sentence, it may have a direct effect on the decision and thus result in a harsher sentence than might have been imposed were that aggravating circumstance not available. We can hardly say that a “standard” for application of the death penalty is merely procedural. We regard it as a substantive provision that cannot be applied retroactively. It was error to do so, thus we must remand the case for resentencing.
3. Motions to suppress inculpatory statements
Mr. Bowen contends that the custodial statements he made to the Phillips County Sheriff, the Chief of the Elaine Police, and the FBI should have been suppressed by the Trial Court. In making this argument, Mr. Bowen argues (a) the statements were obtained without a valid waiver of his Miranda rights, (b) the statements and waiver of rights (if made) were not voluntary, knowing, and intelligent, and (c) the statements were the fruit of an illegal arrest.
In his order denying the motion to suppress the statements, the Trial Court did not address the statements made to Chief Lawman just after the arrest. It was Mr. Bowen’s obligation to obtain a ruling with respect to those statements in order to preserve a point of appeal with respect to them. State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992); Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993).
The statement to Sheriff Winfrey was made after Mr. Bowen said he “wanted to think about” whether to waive his rights and make a statement. As he escorted Mr. Bowman to a holding cell, the Sheriff told Mr. Bowen he did not think he had committed the crime alone, mentioned that he had 25 to 30 officers ready to investigate, and asked Mr. Bowen to do him and himself a favor by saying what happened. At that point Mr. Bowen said there were others involved but that one of them “had nothing to do with it.” Mr. Bowen then asked the Sheriff to promise that nothing would happen to her, and Sheriff Winfrey responded that “if she had nothing to do with it, then nothing would happen to her.”
Mr. Bowen told the Sheriff that the others were Crickett Tindall, who is Mr. Bowen’s mother, and her friend, Cheryl Lob-dill. Mr. Bowen described their vehicle and told the Sheriff that they were on their way to Fort Smith. Shortly after giving these statements, Mr. Bowen was taken to a hospital in Helena for treatment of his ankle which he apparently had injured while attempting to flee after the robbery.
We are not convinced by Mr. Bowen’s arguments about the voluntariness of his remarks to Sheriff Winfrey. He made a passing reference to having been abused by sheriff’s deputies and to the pain he suffered from his injured ankle, but all of the police witnesses testified Mr. Bowen seemed alert and not to have been seriously affected by his injury. They also testified there was no abuse or coercion.
Custodial statements are presumed to be involuntary with the burden of proof placed on the State to show that they are not. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995); Everette v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). If, however, after an independent review of the “totality of the circumstances” we conclude there was no coercion and the statements were made knowingly and intelligently we do not reverse on the basis of their admission into evidence. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).
In this instance, the evidence presented by the State was sufficient to overcome the presumption. We should note here that statements made to the FBI agents later were made after a clear waiver by Mr. Bowen of his rights. He told those agents in detail about the planning and commission of the crime.
The issue that draws our attention has to do with whether Sheriff Winfrey acted properly in questioning Mr. Bowen after Mr. Bowen had acknowledged an understanding of his right not to answer but had declined to sign a waiver of rights form, saying he needed to “think about” waiver. Does that statement amount to an invocation of his right to remain silent? Perhaps so, but the question is whether a subsequent statement may imply waiver.
Mr. Bowen cites United States v. Ramsey, 992 F.2d 301 (11th Cir. 1993), for the proposition that if there has been an equivocal invocation of rights it is the duty of a police officer not to inquire further other than to ask questions in an attempt to clarify the waiver. Mr. Ramsey had, after being warned of his rights and asked to make a statement, looked away from his interrogator and remained silent. Other investigators took him to another room out of the presence of the first questioner on the assumption that he just did not want to talk to her but would talk to them. They urged him to talk, suggesting that it would benefit him to do so, and he made an inculpatory statement. It was held that the investigators had an obligation to clarify his “equivocal invocation” of his rights before asking questions which could lead to an inculpatory statement.
Our view of this matter is that, by saying he wanted to “think about” waiver, Mr. Bowen indicated an understanding of what was at stake. We do not regard the statement as an invocation of his rights, however. In a recent case, the Supreme Court has held that the invocation of the right to counsel must be made with specificity. Davis v. United States,_U.S._, 114 S.Ct. 2350 (1994). We see no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected.
Mr. Bowen had acknowledged that he understood his right to remain silent and to the presence of counsel and yet he spoke without further mention of those rights. We have held that by merely answering questions one may waive one’s right to remain silent by implication. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).
Before leaving the subject of the inculpatory statements, we must mention briefly several other contentions of Mr. Bowen. He argues the Sheriff made a promise that nothing would happen to his mother if Mr. Bowen cooperated. The Sheriff’s testimony was that he said nothing would happen to her if, as Mr. Bowen had said, she had no part in the robbery and murder. Obviously, if that is all that was said it amounted to such a conditional promise that it could not be considered to be coercive.
Mr. Bowen also asserts his mental illness prevented his statements from being intelligently and voluntarily made. Again, the evidence to the contrary in the testimony of the police officials who took the statements posed a question of credibility only. The detail in which he described to the FBI agents the crime and its planning also lent credibility to the State’s position that Mr. Bowen was not incapacitated by his alleged mental illness.
Finally, Mr. Bowen contends all his statements were the results of an illegal arrest and should have been suppressed for that reason. We do not consider that point as the trial court made no ruling on it. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).
4. Failure to order additional competency examination
Mr. Bowen was adjudicated competent to stand trial on July 31, 1992. The trial did not begin until December 7, 1993. During the trial Mr. Bowen testified as several different “alters” or personalities. His counsel sought, and was often granted time to explain matters to the personality testifying or hearing the testimony of others.
An accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995). Once he was determined to be competent, Mr. Bowen once again had the burden of proving incompetency. In addition to the conclusion that Mr. Bowen’s acceptance of his personality disorder rendered him competent, the Trial Court also had before it the testimony of Dr. Hall, who stated that although Mr. Bowen still suffered from MPD, his condition could be managed. Moreover, the record indicates that Mr. Bowen performed well on examinations that tested his ability to understand the legal system. In addition, we find no evidence that Mr. Bowen was prejudiced by his mental condition in his or his counsel’s conduct of the trial. Under these circumstances, we hold there was no error in refusing a further mental examination.
5. Denial of motion to acquit
Dr. Anderson and Dr. Hall, who treated Mr. Bowen during his stay at the State Hospital, filed a report in which they declared that he was competent to stand trial but unable to appreciate the criminality of his act at the time the crime was committed. Mr. Bowen contends he should have been acquitted by the Trial Court pursuant to Ark. Code Ann. § 5-2-313 (Repl. 1993), which provides that a trial court may enter a judgment of acquittal on the ground of mental disease or defect if satisfied the defendant lacked the capacity to conform his conduct to the requirements of the law or appreciate the criminality of his act.
In cases that have interpreted § 5-2-313, this court has found that the statute provides that a court “may” enter a judgment of acquittal on the grounds of mental disease or defect. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Moreover, “the statute permits the trial judge to acquit the defendant in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981).
Denial of the motion was clearly within the Trial Court’s authority and discretion. The medical report stated at one point, “Concerning criminal responsibility, again Mr. Bowen’s Multiple Personality Disorder presents problems in clearly making a decision.” It went on to say that some of his personalities appeared to understand the wrongfulness of the alleged behavior and thus sought to avoid apprehension, but other alters had no memory of the events. The report may not be said to have presented a “clear” determination, and we hold there was no error in failure to acquit pursuant to the statute.
6. Funds for prosecution expert
In response to the State Hospital report which concluded Mr. Bowen was incapable of appreciating the criminality of his acts or conforming his conduct to the law at the time the crime was committed, the State asked for additional evaluation by Dr. Mathews, a professor at the University of Arkansas for Medical Sciences. In the motion it was urged that the MPD diagnosis made by the State Hospital was uncertain and could be the basis of a mistake to be made by the judge and the jury. It was noted that State Hospital records with respect to Mr. Bowen had not been made available to the prosecution. The operative words of the motion were, “The State moves the Court to allow ... [Dr. Mathews] to examine the Defendant, review all medical and pertinent records concerning the Defendant at the State Hospital, diagnose any and all mental conditions which the Defendant may have, and form an opinion....” The motion concluded by stating, “The cost of the further psychiatric examination and evaluation shall be borne by the State.” The motion did not contain a request for funds.
In response, counsel for Mr. Bowen opposed the motion as “doctor shopping” and noted that a request for $10,000, presumably for the purpose of paying Dr. Mathews, from the Phillips County Quorum Court had been highly publicized.
The Trial Court’s order granting the motion said nothing about funding for the further examination. Dr. Mathews testified he was paid $5,000 for his work and testimony in the case, but did not reveal the source.
The point of appeal is that the Trial Court erred in “allowance of funds to the prosecution for the purpose of securing its own expert opinion regarding Bowen’s mental health.” The record simply does not support the assertion that the Trial Court awarded funds to the State for the additional examination. True, we have said that an indigent defendant has no right to funds to shop for a doctor to contradict the report of experts at the State Hospital. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). We have been cited to no case, however, in which we have said that a defendant, who has the means to obtain it, may not present the testimony of an additional expert. Nor is any authority cited to the effect that the State may not do so.
7. Overlapping offenses
Mr. Bowen argues that the Trial Court erred in instructing the jury on both capital felony murder and first degree felony murder. Essentially, he contends that the overlap of the two instructions gave the jury unfettered discretion in choosing his punishment.
No objection on the basis of the overlapping of the instructions was made at the trial. We decline to review the point. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).
8. Improper closing argument
Mr. Bowen contends that the prosecution made improper remarks during closing arguments in the guilt-innocence phase and in the sentencing phase of his trial. He argues that his constitutional rights were violated because the comments improperly and unfairly influenced the jury.
No objection was made to any of the prosecution’s closing argument made at the conclusion of the guilt-innocence phase of the trial. Absent contemporaneous objection at the trial, we will not review the prosecution’s closing argument unless it was so flagrantly improper and so highly prejudicial in character as to have made it the duty of the Court on its own motion to instruct the jury not to consider it. See Wicks v. State, supra; Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916).
The arguments made in the guilt-innocence phase of this case do not rise to that flagrant or highly prejudicial level. There was a “victim impact” reference to Ms. Vondran’s family, although no evidence had been produced in support of it. There was also a “they will do it every time” argument made to suggest that criminal defendants always question the voluntariness of their statements to the police. Perhaps most objectionable was the Prosecutor’s remark that the presumption of innocence no longer applied to Mr. Bowen due to the strong evidence of his guilt. While these arguments could be characterized as improper, they are not of the sort requiring the Trial Court to step in absent an objection.
In the sentencing phase of the trial, the prosecution made closing argument to the effect that application of the death penalty would protect “our family and friends” from “somebody who kills people.” Again, there was no objection, and we hold the remark was not of the sort requiring the Trial Court to act independently.
Mr. Bowen’s counsel did object to two statements made in closing argument by the Prosecutor. The jury was told that in order to find mitigation based on mental illness the illness had to be “extreme.” That was a correct statement of the law, as the jury instruction based on the statutory mitigating circumstance was, “The capital murder was committed while the defendant was under extreme mental or emotional disturbance.”
The other statement to which an objection was made was a “story” told by the Prosecutor about how he had discussed the death sentence in another case years earlier with a candidate for attorney general named “Bill.” Upon being asked by “Bill” whether he thought application of the death penalty would deter others, he had replied “I said Bill, I sure do.” The objection was overruled.
Attorneys are given “leeway” in closing remarks. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993). We note that the jury was instructed that remarks by the attorneys are not evidence. Even though there was no evidence before the jury from which it could determine if the “story” were true, we cannot say it was an abuse of the Trial Court’s discretion not to sustain the objection. It amounted to very little more than a statement of the Prosecutor’s continuing belief in the deterrent effect of capital punishment. To the extent the “story” may have had political overtones, we cannot say they were such as to inflame the passion of the jury.
9. Denial of continuance motions
During the trial, Mr. Bowen’s counsel made frequent motions for a continuance. The primary reasons given were Mr. Bowen’s alleged changes in personality and the accompanying problems that posed for his defense, as well as counsel’s limited opportunity to visit with his client immediately before the beginning of the trial because of Mr. Bowen’s delayed return from the State Hospital.
A motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).
Mr. Bowen has failed to allege prejudice. Counsel requested a continuance or pause in the proceedings frequently, and despite concerns over the length of the trial, the Trial Court attempted to accommodate counsel on many occasions when he requested more time to consult with his client. We conclude there was no abuse of discretion.
10. Voir dire of prosecutor
The trial began December 7, 1992. The newly elected prosecutor joined in the trial after taking office in January, 1993. By that time, most of the jurors had been selected. During voir dire, which occurred before the new prosecutor’s participation, each panel of jurors was asked whether they were related to, acquainted with, or had been represented by the two prosecutors who had been assigned to the case at that time.
Questions were asked of the selected jurors and those to be selected whether they knew or had been represented by the new prosecutor, but the jurors were not asked whether any of them were related to him. Mr. Bowen argues that was error.
Although a general objection was made to the jury ultimately selected on the ground of lack of impartiality, and the objection contained a reference to “questioning about a different prosecuting attorney” the point now being argued was not presented to the Trial Court, and we thus decline to consider it. Wicks v. State, supra.
11. Overbreadth of aggravating circumstances
Mr. Bowen argues the aggravating circumstances concerning “murder committed in an especially cruel or depraved manner” and “murder committed for the purpose of avoiding or preventing an arrest” should not have been presented to the jury because they violate the Eighth and Fourteenth Amendments to the Constitution of the United States.
We rejected the overbreadth and vagueness arguments with respect to the “avoiding or preventing arrest” aggravating circumstance in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). The United States Supreme Court rejected the overbreadth argument with respect to the “especially heinous, cruel or depraved manner” aggravating circumstance in Arizona upon which our statute was modeled. Walton v. Arizona, 497 U.S. 639 (1990). See also Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). We hold the statutes, Ark. Code Ann. §§ 5-4-603 and 5-4-604 (Repl. 1993), permitting these aggravating circumstances to be considered by the jury are not unconstitutionally overbroad.
12. Failure to define “mitigating circumstances”
In his closing argument on the sentencing phase of the trial, Mr. Bowen’s counsel presented a dictionary definition of the term “mitigating” to the jury. He emphasized that the term meant “extenuating or reducing the degree of moral culpability” as opposed to “justification.” He now contends the Trial Court should have defined the term “mitigating circumstances” for the jury.
We assume jurors to be persons of sufficient intelligence to understand the meaning of ordinary language. See Hamilton v. Hamilton, 178 Ark. 241, 10 S.W.2d 377 (1928). Even if the term “mitigating circumstances” required further definition we would not be able to find prejudice here in view of counsel’s correct and unchallenged presentation of the definition to the jury.
13. Mitigating circumstances not unanimously found
Mr. Bowen argues that the court’s instructions on mitigating circumstances suggested to the jurors that they could consider only the mitigating circumstances they unanimously found to exist. In particular, he contends that it is likely the jury found that the three forms relating to mitigating circumstances, one which asks the jury to list those they unanimously found to exist, another which asks for a list of those mitigators that some jurors, but not all, found to exist, and a third which asks the jury to list those mitigators that they unanimously found did not exist, are indistinguishable to a degree that suggested to the jury that a unanimous vote was required before any mitigating circumstance was found.
This same argument was made in Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), on the basis of a Maryland case. We decided the argument lacked merit. We wrote:
Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not all, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms.
14. Omission of the word “other” from AMCI 106
When he instructed the jury, the Trial Court said that “circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any reasonable conclusion.” (emphasis added). Our model instruction, AMCI 106, reads, in significant part, as follows: “inconsistent with any other reasonable conclusion.” Mr. Bowen contends that the Trial Court’s omission of the word “other” created a reasonable possibility that the jury understood and applied the instruction in an unconstitutional manner.
This argument was not presented to the Trial Court. We decline to consider it. Parker v. State, supra.
15. Failure to give notice of aggravating circumstances
Mr. Bowen argues that the Trial Court erred in denying the objection that his counsel made to the State’s failure to give Bowen’s counsel sufficient notice of the aggravating circumstances the State would ask to be submitted to the jury during the penalty phase of the trial.
We need not discuss this point in depth as we are remanding the case for resentencing. We will say, however, that we doubt any prejudice resulted from lack of notice. By the time of the sentencing phase of the trial Mr. Bowen’s counsel was well aware of the State’s evidence and was, of course, aware of the fact that aggravating circumstances are limited to those listed in § 5-4-604. Matching the evidence with the list of possible aggravating circumstances should have provided the information needed.
16. Chain of custody of evidence
Mr. Bowen contends it was error for the Trial Court to allow the State to introduce into evidence the clothing he was wearing when he was arrested on September 19, 1990. The State introduced the clothing during the testimony of Dale Arnold, an investigator for the Arkansas State Police who was in charge of gathering the physical evidence of the crime. In essence, Mr. Bowen argues that the clothes were not properly shown to have been his because the State failed to establish a chain of custody prior to their introduction.
The purpose of establishing a chain of custody is to prevent the introduction of evidence which is not authentic. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To prove authenticity the State must show a reasonable probability that the evidence has not been altered in any significant way. Id. It is not necessary for the State to call every person who could conceivably have come into contact with the evidence; the Trial Court in his or her discretion need only be satisfied that the evidence pre sented is genuine and the reasonable probability is that no one has tampered with it. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990); Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991).
Mr. Arnold testified he received the clothes from Tom Hall, the jailer at the Phillips County Jail who booked Mr. Bowen. It is reasonable to conclude that, as Mr. Hall admitted Mr. Bowen into the jail, it was he who received the clothing once Mr. Bowen changed into a prison uniform. Under these circumstances, the possibility of tampering was shown to be minimal, and it cannot be said that the Trial Court abused his discretion.
17. Unfair hearsay rulings
Mr. Bowen asserts that the Trial Court made a number of errors in ruling on hearsay objections. In particular, he asserts error in granting hearsay objections made by the State, and in denying ones made by defense counsel.
Hearsay is a statement made by an out-of-court declarant that is repeated in-court by a witness and is offered into evidence for the truth of the matter asserted. Piercefield v. State, 316 Ark. 128, 871 S.W.2d 350 (1994); Ark. R. Evid. 801(c). Hearsay is generally inadmissible except as provided by law or by the rules of evidence. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). We will not reverse a trial court’s determination as to the admissibility of hearsay unless there was an abuse of discretion. Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).
Mr. Bowen first complains that when Special Agent Battershell testified during the trial, the State was permitted to introduce into evidence the statement he took from the defendant. Mr. Bowen is apparently arguing that the report was hearsay that should not have been admitted. As the State argues, the statement was admissible as an admission of a party-opponent under A.R.E. 801 (d)(2)(i).
Mr. Bowen also contends that the Trial Court erred when it refused to admit a progress note prepared by Dr. Anderson on February 6, 1992, in which the doctor records his impressions of a session where the personality “William Luther Tindall” appears. Mr. Bowen does not assert any legal basis for his allegation of error on this ruling. Rather, it appears that he is arguing that it should have been admitted because the Trial Court allowed the prosecution to introduce hearsay. In any event, the trial transcript reveals that Dr. Anderson was permitted to read the entire progress note into the record; therefore, the Trial Court did not abuse his discretion.
Mr. Bowen next contends the Trial Court erred when he permitted the State’s expert, Dr. Mathews, to testify concerning notes the State Hospital staff made concerning evidence that Mr. Bowen was malingering. When the defense counsel objected, he did not appear to be making a hearsay objection. Rather, he stated, “If he doesn’t know it’s true he can’t testify to it.” The Trial Court overruled the objection, saying that he was an expert who was giving an opinion, and that the objection went more to the weight of the evidence rather than its admissibility. The Trial Court was correct. When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but presents a jury question as to the weight which should be assigned the opinion. Arkansas State Highway Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985).
Mr. Bowen next argues that the Trial Court should not have allowed Dr. Anderson to testify, in response to a question posed on cross examination, concerning a statement made by Mr. Bowen that was reported in one of his medical records. Specifically, the record contained an interview of Mr. Bowen’s father, Fred Bowen, that was conducted by one of the staff at the State Hospital. During the interview, Fred Bowen reported that his son had said, in effect, that “I could kill you and get away with it because of my mental history.”
The transcript from this portion of Mr. Bowen’s trial reveals that although an objection was made, it was rather obscure and referred only to the admissibility of Mr. Bowen’s medical history and Dr. Anderson’s lack of direct knowledge of the statement. After the objection was overruled, the prosecutor said he would rephrase the question as it had been “badly phrased.” He was then allowed to elicit the testimony about the record without any further objection from the defense. Under these circumstances, this argument was not properly preserved for appeal. Robertson v. State, supra.
Mr. Bowen also argues that the Trial Court erred when he refused to allow Marla Gergely to read to the jury a psychosocial history she had prepared by interviewing people who knew Mr. Bowen. At trial, Mr. Bowen’s attorney argued that the psycho-social history was not hearsay because it was not offered for the truth of the matter asserted. We are not told the purpose of the offering, however, and it is apparent that the only purpose for offering the statements of these people was for the truth of the matter asserted. As Mr. Bowen does not argue that any exception applies, we find no error.
In connection with the ruling on the admissibility of statements made in Mr. Bowen’s psycho-social history, Mr. Bowen argues that Dr. Anderson should not have been permitted to testify about the contents of a progress note prepared by Nurse Rudder on November 28, 1991. In particular, he takes issue with Dr. Anderson being permitted to read the following statement from the report: “Came to door of office with another patient. Waved and said in baby talk, I just came to wish you happy turkey day. I used to be nine and now I am five and my name is Davey.” The statement was offered to show that Mr. Bowen made the statement, and not for the truth of the matter asserted.
In the last paragraph of his argument, Mr. Bowen simply asserts that the court erred when it sustained the State’s hearsay objections, but denied all of his. It is, of course, possible that all of the State’s objections were valid and all of Mr. Bowen’s were not. At any rate, our only possible course of review is to consider each allegation of error on which any specific argument is made, and we have done so.
18. Improper restriction of defense testimony
Mr. Bowen contends the Trial Court erred by not allowing Marla Gergley to refresh her memory with notes made by Dr. Hall. We decline to consider this argument because Mr. Bowen made no proffer of the excluded evidence, thus we are unable to evaluate the matter. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991).
19. Exclusion of juror
During voir dire, venireperson Hicks said that, because of his religious beliefs, he did not feel qualified to take another’s life. He did not unequivocally state that he would not sentence Mr. Bowen to death, but said, “To be a juror you all are looking for me to complete my whole job all the way through and the death penalty when it comes up to it and I don’t know whether I will be able to go to a death penalty with that,” and “That I wouldn’t know until I faced it, but I am taught, you know, to not try to pass judgment on another person’s life. . . .” Mr. Bowen argues that because Mr. Hicks did not definitely say that he would not consider the death penalty, the Trial Court erred in excusing him for cause.
In previous cases that have dealt with this issue, we have deferred to the ability of the a judge to hear the responses made by the venirepersons during voir dire and to observe their demeanor. Additionally, in Pickens v. State, supra, we recognized that the standard for deciding if a venireperson should be excused in this situation has become more relaxed:
The standard for determining if a venireperson should be excused for cause in this situation is no longer whether the venireperson makes it unmistakably clear that he or she would automatically vote against the death penalty. Instead, the court should decide if the juror’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. It is no longer necessary that the juror’s bias be shown with unmistakable clarity. . . . The Court in Wainwright v. Witt, 469 U.S. 412 (1985), clarified its holding in Witherspoon to impose this more flexible standard, as we have recognized. See Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).
The Trial Court did not err by excusing Mr. Hicks for cause.
Compliance with Rule 4-3(h)
The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.
Affirmed in part, reversed in part, and remanded. | [
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Robert L. Brown, Justice.
This appeal is from a judg ment of conviction on two counts of aggravated assault. Appellant Allen Bruce Woods urges two points for reversal. He first maintains that the trial court erred in permitting a Little Rock Police Detective to testify that holes in a house were made by shotgun blasts. Secondly, he urges that the trial court committed error in sentencing him because he gave no written reasons for a substantial departure from the sentencing grid, as required by State law. Neither point has merit, and we affirm the judgment.
The facts in this case are garnered from the testimony of the prosecution witnesses. Lillie McMullan Scroggins testified that she owns a two-story brick house on Fair Park Boulevard in Little Rock. On June 9, 1994, Tanyia McMullan, Lillie Scrog-gins’s daughter, and Tanyia’s college friend, April Sherrill, were at the house on Fair Park Boulevard. Lillie Scroggins was on a cordless telephone to Veronica McMullan, another daughter, when she observed a blue Cadillac pull up in her yard with five males in the car. Woods, whom she had seen before, came to the door and asked for Tanyia. She told him that Tanyia was not there. Woods returned to the car which left. Lillie Scroggins was still on the telephone with Veronica McMullan, and she told Veronica McMullan that Woods had come to the house. Lillie Scroggins then called 911, and Veronica McMullan came over to the house.
Lillie Scroggins further testified that Tanyia had returned to her house and was outside talking when the blue Cadillac returned. Tanyia started running toward the house. Lillie Scrog-gins saw Woods get out of the back of the car, open the trunk, get a gun, and put it together. She testified that another youth had a bat in his hand. She described the gun as long and black. As she was running, Tanyia tripped on the steps to the house, and Veronica McMullan and Lillie Scroggins pulled her into the house. The driver, who had the bat, began kicking the door. The women pushed a sofa behind the door, and he was unable to kick it open. Lillie Scroggins added that the boy with the bat hit the' windows and that she heard what sounded like a gun going off. She did not see anyone firing a gun. Tanyia called 911, and, later, a police officer arrived. Lillie Scroggins testified that the windows and screen in the dining room were broken, that the lining of the drapes was torn, and that glass was everywhere in the house. The front door was also cracked, and the sofa was torn. Woods was the only person that she saw with a gun.
Veronica McMullan, Tanyia McMullan, and April Sherrill basically confirmed Lillie Scroggins’s rendition of what happened. Veronica McMullan added that she actually saw Woods firing the shotgun at the house. Tanyia testified that Woods had either pointed the gun at her or the house.
Woods was initially charged with one count of a terroristic act and five counts of aggravated assault. The State initially nolle prossed one count of aggravated assault, and the trial court directed a verdict on two others. The terroristic act charge and the aggravated assault charges with regard to Lillie Scroggins and Tanyia McMullan went to the jury. The jury found Woods guilty of the two aggravated assault charges, which are Class D felonies, and acquitted Woods of committing a terroristic act. Following the sentencing phase, the jurors could not arrive at a verdict, and the jury was dismissed. The State and defendant agreed that the trial court would fix the sentence, and a presentence report was requested.
A sentencing hearing was held. According to the sentencing grid, Woods had a grade of level three for seriousness of the crime and zero for criminal history. Under the grid, commitment to a regional punishment facility with alternative sanctions was provided. Despite this, the trial court sentenced him to six years on each conviction and fined him $10,000 on each conviction, for a total sentence of 12 years and $20,000. Woods describes this sentence as 2 1/2 times what the presumptive sentence was. The exact presumptive sentence alluded to is not provided by Woods. (The statutory penalty for a Class D felony is up to six years. Ark. Code Ann. § 5-4-401 (Repl. 1993).) On the day that the judgment and commitment form was entered, the trial court filed a standardized Departure Form and circled the numbers beside the following two aggravating circumstances as reasons for enhancing punishment more than 5 percent above the sentencing grid:
2. Offender knew victim vulnerable due to extreme youth, advanced age, disability or ill health.
8. Offense was committed in a manner that exposed risk of injury to others.
Woods first contends that it was reversible error under Ark. R. Crim. P. 17.1 for the State not to disclose the anticipated shotgun testimony by Detective Lawrence Welborn prior to trial. Woods had filed a motion for discovery and, in part, requested the names, addresses, and the substance of their testimony. The response by the State had been that it has an “open file” policy. Detective Welborn’s name was in the file, but defense counsel had not talked to him.
Prior to the detective’s testimony at trial, defense counsel objected to any “physical evidence” of the shotgun blast. The State answered that it had no physical evidence to introduce and this colloquy ensued:
THE COURT: All right, sir. Is the State planning on producing any physical evidence that was not given to the Defense?
STATE: No physical evidence, Your Honor.
THE COURT: Okay. You did give him the name of this witness in advance?
STATE: Yes. sir, I did.
THE COURT: What’s your objection, sir?
DEFENSE COUNSEL: Well, I’ll probably cross examine him. If he’s going to testify to gunshot marks and things then it would just be his memory. Do you have enough memory since you’re not intending to produce any physical evidence?
STATE: Your Honor, with all due respect, there is nothing in the police report about the gunshot bullet holes; however, because I spoke with this officer beforehand and discussed his observations with him, he told me that he did see them.
THE COURT: Mr. Mercer, if you were given this witness’ name in advance of trial, what he saw, heard and experienced most certainly is going to be admissible.
DEFENSE COUNSEL: All right.
Direct examination of Detective Welborn by the State followed, and he testified that he was trained at the State Police Academy on the use of a shotgun. He stated that he was trained on the size of the barrel and the pattern a shotgun produces with different ammunition. He added that he was familiar with the type of hole that a shotgun makes when fired and that he had seen the results of over 100 shotgun blasts. He opined that the holes at the McMullan house were shotgun holes. No objection was made to this testimony by defense counsel.
The State argues that an objection to Detective Welborn’s opinion testimony was not made and, thus, the issue was not preserved for appeal. We agree. Defense counsel made his objection on the basis of physical evidence of the shotgun blasts, which would encompass embedded pellets retrieved from the house and the like. No objection was made to the detective’s giving his opinion of what made the holes in the house. Indeed, defense counsel stated that he would probably cross-examine the detective about his memory concerning “gunshot marks and things.” An objection to physical evidence is different from an objection to observations and opinions. We have held numerous times that a defendant cannot change his argument on appeal. See, e.g., Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). We, accordingly will not address the merits of this point.
Woods next contends that the trial court erred in not following statutory procedure in departing from the sentencing grid in his sentence. The pertinent parts of the statute follow:
(a)(1) Effective January 1, 1994, the trial court may deviate within a five percent (5%) range below or above the presumptive sentence without providing a written justification.
(2) (A) For the trial court to depart beyond the five percent (5%) range below or above the presumptive sentence, written justification shall be given for the most serious offense if the sentences are run concurrently or on each offense if the sentences are run consecutively, specifying the reasons for such departure.
(3) A copy of the written reasons shall be attached to the commitment and another copy forwarded to the Arkansas Sentencing Commission.
(c)(1) When a sentence is imposed after January 1, 1994, which is outside the presumptive range and which is not accompanied by written reasons for the departure, an offender shall be considered for any discretionary release applicable under the law as if he had received the presumptive sentence, and the transfer or releasing authority may review, grant, or deny transfer or release based on any eligibility established by the presumptive sentence term.
Ark. Code Ann. §§ 16-90-804(a)(1), (a)(2)(A), (a)(3), and (c)(1) (Supp. 1995). Section 16-90-804(d)(2) continues with a list of aggravating factors that might cause an upward departure from the presumptive sentence, including the two circumstances cited by the trial court in the instant case.
We agree with the State’s contention that any defect in the Departure Form should have first been raised to the trial court for consideration and possible correction. The Departure Form is in the record and according to § 16-90-804(a)(3) was required to be attached to the judgment and commitment form. We have no doubt that defense counsel had either received the form or easily could have availed himself of it and, hence, had ample time to broach any deficiency to the trial court.
Nonetheless, we choose to address the merits of the issue raised because of its importance to the bench and bar. The trial court in this case circled the numbers of the apposite aggravating circumstances rather than wrote out reasons for the enhancement. We conclude that the General Assembly did not intend by § 16-90-804 that the trial court necessarily write out the reasons for departure in longhand but only that the reasons be written. Here, they were in writing, and the trial court circled the numbers of those aggravating circumstances that comprised its justifications. We hold that this procedure was appropriate under the statute and did not constitute error.
Affirmed.
Lillie Scroggins testified that she had a disability which necessitated her use of a walker but that she still assisted Tanyia in getting into the house.
It is somewhat unclear whether the trial court circled number 1 or number 2, but it appears the court circled number 2.
Substance of testimony by witnesses is not required under Rule 17.1. Holloway v. State, 310 Ark. 473, 837 S.W.2d 464 (1992); Cox v. State, 36 Ark. App. 173, 820 S.W.2d 471 (1991). We do not reach this issue, however, for reasons stated in this opinion. | [
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David Newbern, Justice.
At the end of a full-term pregnancy in 1989, appellant Joanne Mote, whose name is now Joanne Chatelain, was admitted to a hospital for delivery of her child. While she was awaiting delivery, an emergency Caesarian sec tion became necessary, and Dr. Lawrence A. Kelley, the appellee, was to perform the procedure. Ms. Mote and her then-husband, appellant Daryl Mote, alleged the child was stillborn due to a delay in the operation caused by Dr. Kelley. They sued Dr. Kelley and the hospital for wrongful death.
After a voluntary nonsuit in 1992, the complaint was refiled against Dr. Kelley only. The Trial Court concluded that an unborn fetus is not a “person” for purposes of the Arkansas Wrongful Death Statute, Ark. Code Ann. § 16-62-102 (Supp. 1993), and granted Dr. Kelley’s motion for summary judgment. We affirm the judgment.
As it did in 1989, § 16-62-102 provides in significant part the following:
Wrongful death actions — Survival.
(a)(1) Whenever the death of a person shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.
* * *
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
Whether the death of a fetus is the “death of a person” in the context of the law of wrongful death is an issue of first impression in Arkansas. As reported in B. Lingle, Comment, Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark. L. Rev. 465 (1991), a majority of the states which have considered the issue have interpreted similar legislation to hold that the death of a fetus qualifies as the death of a person. A significant minority of jurisdictions have, however, concluded to the contrary. See also S. Speiser, C. Krause, and J. Madole, Recovery for Wrongful Death and Injury (3d Ed. 1992 and Supp. 1995); Annot., 40 A.L.R.3d 1222 (1971).
Typical of the majority view is the strong opinion in Summerfield v. Superior Court, 698 P.2d 712, 144 Ariz. 467 (1985). The Arizona Supreme Court reviewed the history of the issue from Justice Holmes’s pronouncement in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am. Rep. 242 (1884), that no action would lie for the death of a fetus because it was part of its mother rather than an independent being, through present-day pronouncements to the contrary. The Arizona Court pointed out that the law clearly would allow a cause of action for a prenatal injury resulting in the death of a child born alive, and it is thus illogical to say that a prenatal injury resulting in the death of a viable fetus should not form the basis of a wrongful death claim. The Court stated that “with regard to the issue of recognizing a loss to the survivors, viability is a less arbitrary and more logical point than the moment of birth.”
A common thread in the cases adopting the majority view is that the action for wrongful death is “remedial” in nature and is thus to be interpreted liberally with a view to accomplishing its purposes of compensating injured persons and deterring harmful conduct. See, e.g., Volk v. Baldazo, 651 P.2d 11 (Idaho 1982).
Cases espousing the minority view include Duncan v. Flynn, 342 So.2d 123 (Fla. App. 1977), in which it was held that there must be a live birth to sustain a claim with respect to a prenatal injury to a fetus under a wrongful death law. The Court referred to its earlier opinions where it held that once a child is born alive, he or she is a “person” who can maintain an action for damages resulting from any prenatal injuries that were suffered. The holding was that a live birth must have occurred either through complete expulsion in a vaginal delivery or complete removal in Caesarian section, for acquisition of a “separate and independent existence” from the mother.
In addition to drawing the recovery line at “live birth,” other courts in the minority have considered legislative enactments in other areas of the law which have treated injuries to stillborn fetuses differently from injuries to those born alive. In Giardina v. Bennett, 545 A.2d. 139 (N.J. 1988), the New Jersey Supreme Court noted how the state legislature distinguished between persons and stillborn infants and fetuses when it had the opportunity, particularly in the Uniform Anatomical Gift Act. [See Ark. Code Ann. §§ 20-17-601 through 20-17-617 (Repl. 1991 and Supp. 1993).] The Court observed that “the Legislature has in other ways dealt with the consequences of the prenatal condition,” such as allowing children, once born, “to acquire rights or interests by way of inheritance or other devolution of property.” Also, at the time the New Jersey Wrongful Death Act was enacted, a fetus was not considered a person. Under these circumstances, it was held that the legislature “never intended to create a derivative action in favor of the survivors of a fetus never bom alive....”
The Iowa Supreme Court was also constrained by its rules of statutory construction when it made its decision in Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), distinguished on other grounds in Audobon-Exira Ready Mix v. Illinois Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983). The Iowa Court observed that a “person” is a human being who has “attained a recognized individual identity” by being born alive. It was noted that Iowa, unlike some other states, had a “survival” kind of wrongful death statute. The Court stated:
Such a statute does not create a new cause of action in a decedent’s survivors; rather, it preserves whatever rights and liabilities a decedent had with respect to a cause of action at the time of his death. [Citations omitted.] The cause of action thus preserved is deemed to accrue to the decedent’s estate representative “at the time it would have accrued to the deceased if he had survived.”
Our § 16-62-102 is also a “survival” kind of statute. Under the Iowa wrongful death statute, a cause of action only accrues when a person, once “living,” has died. The Court engaged in a statutory analysis similar to the New Jersey Supreme Court’s opinion in the Giardina case. It examined the Iowa Code and noted that in other areas the “legislature has not hesitated to be specific when it intended a statute to apply to fetuses.” Since an earlier decision in which a fetus was determined not to be a person, the Iowa legislature had not amended the wrongful death statute to include fetuses.
Another concern expressed in the minority jurisdictions has been measurement of the recovery. In New Jersey when Graf v. Taggert, 204 A.2d 140 (N.J. 1964), was decided, the damages that could be recovered under the wrongful death act were limited to pecuniary loss. Without reaching the question whether a fetus was a “person,” the Court declined to recognize that a cause of action could be maintained because damages would be too speculative: “It is virtually impossible to predict whether the unborn child, but for its death, would have been capable of giving pecuniary benefit to its survivors.” Id. at 144.
In Endresz v. Friedberg, 248 N.E.2d 901 (N.Y. 1969), the New York Court of Appeals echoed the same concern, saying, “If the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased.” The New York Court also perceived a risk of double recovery and said:
[S]ince the mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium, and additional award to the “distributees” of the foetus would give its parents an unmerited bounty and would constitute not compensation to the injured but punishment to the wrongdoer.
Various reasons have been held to justify adhering to the “live birth” rule in these states. One has been the difficulty in moving the line from live birth to viability. The Court in the Endresz case stated:
It is argued that it is arbitrary and illogical to draw the line at birth, with the result that the distributees of an injured foetus which survives birth by a few minutes may have a recovery while those of a still born foetus may not. However, such difficulties are always present where a line must be drawn. To make viability rather than birth the test would not remove the difficulty but merely relocate it and increase a hundredfold the problems of causation and damages. Thus, one commentator aptly observed that (Wenger, Developments in the Law of Prenatal Wrongful Death, 69 Dickinson L. Rev. 258, 268), “since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement.”
In addition to this line-drawing problem, courts have also considered the different situations of the stillborn fetus and the child who survives birth and must live with his or her injuries. The Endresz case is an example. In Justus v. Atchison, 565 P.2d. 122 (Cal. 1977), the California Supreme Court compared the emotional effect of loss of a fetus with loss of a child after a living birth had occurred.
The combination of expressions of public policy, logic, precedent, and legislative intent found in the cases of other states presents a very difficult field to traverse. We find the crossing less difficult, however, when we add decisions we have made on the periphery of the question presented.
In three cases, we have had the opportunity to touch upon the issue of whether a fetus can be considered a “person.” Dr. Kelley contends the holdings in these cases indicate a disposition to hold that, for purposes of wrongful death suits, a fetus is not a person. On the other hand, the Motes contend that these decisions were in other areas of law so we are not precluded from holding that a fetus is a person in the wrongful death context.
In the first case, Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), Sheryl Carpenter was killed in a car accident while she was between eight and eight-and-one-half months pregnant. The investigating officer found the dead fetus outside Sheryl Carpenter’s body and concluded that the force of the impact had thrust the fetus through the mother’s abdominal wall. The widower, Cary Carpenter, filed a petition in probate court for the appointment of an administrator for the fetus. The Probate Court held it was without authority to order the administration of the estate of an unborn fetus. Mr. Carpenter appealed and framed the issue as “whether an unborn viable fetus or viable fetus born dead as direct result of trauma caused by negligence or willful and wanton misconduct has a cause of action against the tortfeasor.”
We affirmed the decision of the Probate Court. In doing so, we noted that the issue stated by Mr. Carpenter could be reached only in an adversary tort proceeding and not in an ex parte probate proceeding. We said:
The wrongful death statute, Ark. Stat. Ann. §§ 27-906-27-910 (Repl. 1979), will determine whether, or to what extent, there is a right to maintain an action, or to recover damages, for the death of an unborn child. The action, if any, is a tort action and is cognizable in circuit court. We will not interpret the wrongful death statute in an ex parte probate proceeding. . . . The issue before the probate court and now on appeal in this case is whether an unborn fetus or a fetus born dead is a deceased person within the terms of the probate code. . . .
The Motes argue the foregoing language indicates we did not decide the issue in Carpenter v. Logan because the wrongful death statute was not applicable in a probate proceeding. Dr. Kelley argues that this opinion supports his position because we went on to state that, within the context of probate, there was no basis for the conclusion that a fetus can be considered a “decedent.” We said:
In Arkansas the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of jurisdiction and powers specifically granted. [Citation omitted.] Nothing is said about unborn children in the constitutional provision concerning probate courts or in the statutory jurisdictional provision. [Citations omitted.] Any attempt to extend the probate code to unborn children would be without specific authority and would be void.
Dr. Kelley argues that, just as a fetus cannot be considered a “decedent” under the probate code, a fetus should not be considered a “person” under the wrongful death statute.
In Carpenter v. Bishop, 290 Ark. 424,720 S.W.2d 299 (1986), Mr. Carpenter, as father and next friend, sued the mother, alleging that her negligence had resulted in the death of the fetus. On appeal, we concluded that the issue of whether a viable fetus born dead is a “person” need not be reached, because the .suit against Sheryl Carpenter was barred by the doctrine of parental immunity.
In Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), we decided a fetus was not a “person” as the term was used in the manslaughter law. Mr. Meadows, while intoxicated, drove his car across the center line of the highway and struck an oncoming car. The driver of the car and a viable fetus being carried by the passenger were killed. Mr. Meadows was convicted of two counts of manslaughter. On appeal, he argued that the reckless killing of a viable fetus is not included within the purview of the manslaughter statute which refers to causing the death of another “person.” Ark. Code Ann. § 5-10-104 (Repl. 1993).
In our opinion, we noted that the term “person” was not defined by the statute, and therefore, reference had to be made to common law for a definition. At common law, the terms “human being” and “person” did not include fetuses.
We also noted the following in the Meadows case:
An early feticide statute, Ark. Stat. Ann. § 41-2223 (Repl. 1964) provided that “the willful killing of an unborn, quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter.” . . . However, that manslaughter statute, specifically relating to unborn children, was expressly repealed by Act 928 of 1975. Obviously, the legislative intent shown, if any, is that the killing of a viable fetus is not manslaughter.
Dr. Kelley contends the case supports his position as both we and the General Assembly refused to recognize a viable fetus as a “person” for purposes of the crime of manslaughter. The Motes argue the case and statutory revision are essentially irrelevant because they do not deal with the civil action for wrongful death but have to do with the creation of a common law crime and interpretation of a criminal statute which is circumscribed by thick constitutional strictures. We tend to agree with both points of view, but we add that the reference to the revision of the manslaughter statute, like the reference to fetuses in the Uniform Anatomical Gifts Act, both in New Jersey and here, demonstrates that the General Assembly knows how to include the proper terminology or exclude it in accordance with its intent to protect or not to protect fetuses.
Finally, it must be noted that since these cases were decided, Amendment 68 was added to the Arkansas Constitution. In that Amendment, the public policy of the State regarding unborn children is announced as follows: “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.” If we were to hold that Amendment 68 was a self-executing amendment requiring us to interpret the wrongful death law as protecting fetuses in accordance with its terms, we would have to draw the line not at birth or at viability but at conception, and that is a position that has not been advanced by anyone to our knowledge.
In addition to the Constitution, the public policy of this State is found in its legislation. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993); Walmart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). The General Assembly is particularly suited to making this sort of policy decision. Nabholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995). Despite its obvious ability to do so the General Assembly has not seen fit to expand the definition of “person” beyond the common law limits found in the manslaughter and probate contexts.
We are reluctant to create an inconsistency in the laws of this State by holding “person” includes viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate.
Surely this decision will heighten the General Assembly’s awareness of the issue at hand, and we commend it to the legislative prerogative.
Affirmed.
Glaze, Corbin, and Roaf, JJ., dissent. | [
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Robert H. Dudley, Justice.
Deborah Harris had a baby on November 26, 1970, and subsequently married appellee Robert Harris. Appellee then adopted the child. On August 6, 1981, the Harrises were divorced in Missouri. The decree awarded child custody to the mother and ordered appellee to pay $128.00 per month child support beginning September 1, 1981, and to con- dime until the child reached majority. The child reached majority on November 26, 1988. In the meantime, appellee moved to Crittenden County and, at least in part, failed to pay the child support. The Missouri Department of Social Services referred the matter to appellant Arkansas Department of Human Services, and on March 19, 1993, in Crittenden County, appellant Department of Human Services filed this action for past due child support. The chancellor ruled that the applicable statute of limitations barred claims for arrearage that accrued more than five years before the complaint was filed and found that appellee Harris owed $1,152.00 Appellant Department appeals. We affirm the ruling.
On appeal, appellant Department of Human Services contends that the statute of limitations barred claims for arrearage that accrued more than five years from the effective date of Act 870 of 1991, or March 29, 1986, rather than the five years before the complaint was filed, or March 19, 1989. Act 870 of 1991, now codified as Ark. Code Ann. § 9-14-236 (Repl. 1993), expanded the limitations period for child support actions.
We do not reach the issue. Appellant’s abstract does not contain a summary of the petition or complaint; nor does it contain a synopsis of the proof, if any; nor does it contain a condensation of arguments made below, if any; nor does it contain a summary of briefs submitted to the chancellor, if any. In short, appellant’s abstract does not reflect that it made the argument to the chancellor that it now makes on appeal.
We only reverse a trial court for some prejudicial error committed, or not corrected, by the trial court, with some exceptions not applicable to this case. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). It is incumbent upon appellant to file an abstract that reflects that an issue was raised in the trial court, and the trial court either erred or refused to correct an error. We will not reach an issue where the abstract does not show that it was raised in the trial court. Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992).
Affirmed.
Glaze, J., concurs and Brown, J., dissents. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Office of Child Support Enforcement (“Office”), appeals from a chancellor’s order dismissing its paternity complaint against appellee Mark Harnage. The chancellor ruled that the Office was not a “real party in interest” under Ark. Code Ann. § 9-14-210 (Repl. 1993), due to the fact that the Office had expended no public funds on behalf of the minor child, and thus had no standing to bring suit against Harnage. As the Office made a proper showing that it was a real party in interest under § 9-14-210(d)(2), we reverse and remand.
On July 18, 1994, the Office filed a paternity complaint against Harnage, alleging that he was the father of Stephanie Smith, born March 27, 1976. Attached to the complaint was an April 7, 1994, affidavit of Terry Smith, the natural mother of the child, who averred that she had assigned her right to child support to the Office or had contracted with the Office for its services. The Office asked the chancellor to find Harnage to be the father and to order him to pay a reasonable sum for support.
Harnage filed an answer denying that he was the child’s father. He moved to dismiss the complaint on the grounds that the Office was not a real party in interest and thus had no standing to bring the'paternity suit. In response to this motion, the Office submitted a contract entered between it and Terry Smith on February 28, 1994, prior to the child’s eighteenth birthday, whereby Terry assigned her right to child support to the Office pursuant to Ark. Code Ann. § 20-76-410 (Repl. 1993). The Office asserted that it was a real party in interest under § 9-14-210(d)(2). Thereafter, Harnage filed an amended answer in which he maintained that the Office had no standing and that there was no compelling state interest to pursue the paternity action because the child was a sui juris adult who received no public assistance during her minor years. Following a hearing, the chancellor dismissed the action.
The Office’s sole argument on appeal is that the chancellor erred in concluding that it was not a real party in interest and thus had no standing to bring the paternity complaint against Harnage. Particularly, the Office asserts that the plain wording of Ark. Code Ann. §§ 9-10-104 and 9-14-210 (Repl. 1993) specifically gives it the right to bring the paternity complaint at issue. In his brief, Harnage maintains that the chancellor correctly dismissed the complaint because § 9-14-210 limits the grant of standing to “§ 20-76-410 involving grants to dependent children and § 20-77-109 involving medicare assistance on behalf of the child.”
In interpreting statutes, we give words their ordinary meaning and attempt to give effect to legislative intent:
The beginning point in interpreting this statute, as with all statutes, is to construe the words just as they read and to give them their ordinary and accepted meaning. In addition, this court adheres to the basic rule of statutory construction which is to give effect to the intent of the legislature, making use of common sense.
State v. Johnson, 317 Ark. 226, 876 S.W.2d 577, 579 (1994) (citations omitted). See also State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995).
First, it should be noted that Ark. Code Ann. § 9-10-104 (Repl. 1993) provides that petitions for paternity establishment may be filed by a biological mother, a putative father, a person for whom paternity is not presumed or established by court order, or the Department of Human Services. Pursuant to Act 957 of 1993, the legislature transferred the Child Support Enforcement Unit of the Division of Economic and Medical Services of the Department of Human Services to the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration. This transfer was a type 2 trans fer; therefore, the statutory authority of the Department of Human Services was transferred to the Office of Child Support Enforcement. See Ark. Code Ann. § 25-2-105(a) (Repl. 1993). Thus, it is apparent that the Office could file the petition for paternity establishment under § 9-10-104. Under Ark. Code Ann. § 9-10-102 (Repl. 1993), “[a]ctions brought in the State of Arkansas to establish paternity may be brought at any time.”
The principal statute at issue is § 9-14-210(d). This is the statute upon which Harnage relies. It provides in pertinent part as follows:
The State of Arkansas is the real party in interest for purposes of establishing paternity and securing payment of benefits paid and assigned past due support, future support, and costs in actions brought to establish, modify or enforce an order of support in any of the following circumstances:
(1) Whenever aid under §§ 20-76-410 or 20-77-109 is provided to a dependent child; or
(2) Whenever a contract and assignment for child support services has been entered into for the establishment or enforcement of a child support obligation for which an assignment under § 20-76-410 is not in effect; or
(3) Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq.
(Emphasis added.) In the present case, Terry Smith entered into a contract and assignment of child support services with the Office. The three criteria in this statute are listed in the disjunctive, and the Office is a real party in interest when any one of the three conditions is met. Nowhere in § 9-14-210(d)(2) does it require that public funds be expended on behalf of the child before the Office is deemed a real party in interest under this subdivision. We have held that, where the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). See also Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); State v. Johnson, supra. Because the chancellor’s ruling runs contrary to the clear and definite meaning of the statute, we must conclude that its decision was in error.
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Per Curiam.
Appellant, Eric West, through his attorney, Jeffery H. Kearney, asks this court to grant a writ of certiorari to complete the record in this case, or alternatively, to grant a new trial. We grant the writ to complete the record and deny the request for a new trial.
By petition, appellant states he was convicted by a death-qualified Chicot County Circuit Court jury of capital felony murder and sentenced to life imprisonment without possibility of parole. The partial transcript filed with the petition indicates appellant was also found guilty of two counts of attempted capital murder and sentenced to thirty years on each of those counts.
The judgment of conviction was filed on either December 2 or 5, 1994; the file stamp is illegible. The notice of appeal was filed on December 22, 1994, and the transcript was requested from the court reporter on that date by copy of the notice of appeal. On March 2, 1995, appellant’s counsel moved the trial court for a full seven-month extension due to counsel’s briefing schedule and the reporter’s transcription commitments. The trial court entered an order granting the full extension on the same date, March 2, 1995. The motion for extension does not indicate notice was given to opposing counsel as required by Ark. R. App. P. 5(b). There is no indication that the requisite hearing was held to determine the necessity of the extension. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995) (per curiam) (citing Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977)). The extension was therefore granted in violation of our rules of appellate procedure.
Appellant’s counsel filed this petition on September 11, 1995. Attached to the petition is a letter dated July 3, 1995, to appellant’s counsel from the court reporter, Val Dixon-Sims, stating that her storage room was vandalized on January 17, 1995. The letter indicated that, with respect to appellant’s case, the stenographic notes and exhibits were totally destroyed and the tapes were partially destroyed. Ms. Dixon-Sims stated in the letter that the record could not be transcribed.
Despite the aforementioned letter, there is no showing that the trial court has conducted any type of proceeding to determine whether it is possible for a record to be transcribed by any method. Moreover, we are not aware of any attempt to reconstruct the record in accordance with Ark. R. App. P. 6(d). Appellant’s counsel states in the petition that “it seems highly infeasible” to reconstruct the record because the prosecuting attorney has since become a circuit judge. Nevertheless, we remain unaware of any reason that would prevent the trial court, court clerk, court reporter, and counsel for both sides from attempting to reconstruct the record in this case. The fact remains that no attempt to do so has been made.
We therefore grant the writ of certiorari to complete the record in this case and direct the trial court, circuit clerk, court reporter, and counsel for the prosecution and defense to attempt to settle the record in this case. The alternative request for a new trial is denied. | [
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Per Curiam.
William Francis Bowen was convicted of capital murder and sentenced to death. In Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), we affirmed the conviction but reversed the sentence and remanded the case to the Circuit Court for resentencing. Mr. Bowen has filed a motion for clarification with respect to a conflict that arises within A.R.Cr.P. 37 in cases where only the sentence is reversed by the appellate court. The present form of the rule does not provide guidance as to proper timing for filing a petition for post-conviction relief after remand to a circuit court for resentencing.
Rule 37.1 limits the scope of post-conviction relief to those petitioners who are “under sentence of a circuit court,” while Rule 37.2(c) provides that, if an appeal is taken, the limitation on filing post-conviction petitions is 60 days from the date the mandate was issued by the appellate court. The conflict arises in cases such as Mr. Bowen’s, where, after an appeal that results in a reversal of only the sentence, the petitioner is no longer “under sentence of a circuit court,” but must act within 60 days of the mandate or lose his right to post-conviction relief.
We amend Rule 37.2(c) this date to provide appropriate limitations for seeking post-conviction relief after action by the circuit court upon remand. The revised rule applies to Mr. Bowen’s case.
Mr. Bowen has asked that our mandate affirming his conviction be stayed pending action by the United States Supreme Court on a petition for certiorari he proposes to file in the event his petition for rehearing in this Court is denied. Mr. Bowen’s petition for rehearing was denied on January 8, 1996. Although there is no showing that Mr. Bowen has ordered the record from the Office of the Clerk for the purpose of pursuing relief from the United States Supreme Court, see Arkansas Supreme Court Rule 5-3(c), the State has declared in its response that it has no objection to the granting of the motion to stay the mandate, so it is granted. | [
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Robert L. Brown, Justice.
The issue before this court is whether the Arkansas Petroleum Trade Practices Act (Act 380 of 1993) violates the Arkansas Constitution by impinging on the due process rights, the equal protection rights, and the privileges and immunities of appellant Ports Petroleum Co., Inc. We hold that Act 380 is constitutionally infirm because of its failure to include an element of predatory intent for a violation. As a consequence, the Act is overbroad in its effect and impermissibly impinges on the due process rights of Ports Petroleum.
I. Facts
On April 20, 1993, Ports Petroleum Company, Inc. (“Ports Petroleum”) filed its complaint for declaratory judgment in chancery court. Ports Petroleum owns Fuel Mart gasoline stations in Little Rock and Jonesboro, which sell unbranded motor fuel. Lone Star and Thomas Oil sell retail gasoline in Arkansas. Through their attorneys, Lone Star and Thomas Oil contacted Ports Petroleum and threatened to sue if Ports Petroleum did not raise its price per gallon above below-cost levels. The letters asserted that Ports Petroleum was selling its gas in violation of the Arkansas Petroleum Trade Practices Act (Act 380 of 1993). Ports Petroleum sued first and named Lone Star and Thomas Oil as defendants based on the threatening letters. It further named Governor Jim Guy Tucker and Attorney General Win ston Bryant as parties defendant because they constitute the enforcement mechanism under the Act.
Ports Petroleum’s declaratory judgment complaint alleged that Act 380 violates the Arkansas and United States Constitutions because it does not require an antitrust injury or predatory intent to run afoul of the Act. Its argument was framed in terms of due process, privileges and immunities, and equal protection violations. Ports Petroleum claimed that, as a practical matter, the prohibition on selling unbranded fuel below cost inhibited fair competition because unbranded fuel sellers are by necessity required to sell a greater volume of fuel at a discounted price in order to compete with branded fuel companies like Exxon and Texaco. It further alleged that the prohibition under Act 380 of below-cost sales violated its property and liberty interests by regulating innocent pricing decisions, which do not adversely affect competition.
Other claims made by Ports Petroleum were: (1) as an unbranded dealer, it does not receive the same protection as branded dealers under the Arkansas Constitution and that the denial of its rights resulted in a deprivation of business opportunity without just compensation, and (2) Act 380 violates the United States Constitution by negating the requirement of antitrust injury in pricing cases, which has the ironic effect of hindering competition and amounts to an unreasonable exercise of the state’s police power, all of which is contrary to federal legislation. According to the complaint, the Supremacy Clause of the United States Constitution preempts Act 380. Ports Petroleum prayed for an injunction to halt enforcement of the Act.
The Arkansas Oil Marketers Association (“AOMA”) moved to intervene as a defendant in the suit. The organization is comprised of approximately 200 independent petroleum marketers in the state, and, according to the motion, it played an instrumental role in developing the Act. The parties did not oppose the intervention of AOMA, and the trial court granted the motion.
Ports Petroleum moved for summary judgment. Attached to the motion were the two letters of intent to sue by Lone Star and Thomas Oil and an affidavit by Michael D. Ports, the president of Ports Petroleum. In the affidavit, Ports substantiated the claims in the complaint that unbranded fuel sellers are required to sell at a discount price in order to compete with other types of fuel retailers. Ports also averred that the volume of Fuel Mart sales had dropped since the Jonesboro store raised its fuel price but that the Little Rock price was sufficiently low to sustain its volume of sales. Ports opined that the enforcement of the act would ultimately drive Ports Petroleum out of business.
Ports Petroleum also attached the deposition of Mike Coulson, the former president of AOMA. Coulson described the differences between branded and unbranded fuel markets. He testified that AOMA retained counsel to draft the legislation which was later enacted as Act 380. According to Coulson, the Act does not distinguish between branded and unbranded dealers. He testified that if you do not have a branded product, “then price is probably what you’re selling.”
As a fifth exhibit, Ports Petroleum attached an affidavit from Leonard A. White, a professor of economics at the University of Arkansas in Fayetteville. He predicted that the Act would cause higher prices and decrease competition, which would injure the consumer. White pointed out that it was not automatically predatory for a business to sell a product at below cost. As examples, he listed giving away a free radio with the purchase of a car and selling gasoline below cost to reap an inflated price on ice cream cones.
Thomas Oil, Lone Star, and AOMA filed a response to Ports Petroleum’s motion for summary judgment and filed their own cross-motion for summary judgment. They too attached affidavits. Gerald J. Lynch, an economics professor at Purdue University, analyzed the Act and opined that the dynamic nature of competition will not suffer under the Act. Lynch concluded that “[t]he Act is a reasonable one that will allow dynamic competition [in] the short run, and protect the market from monopoly power in the long run.” The affidavit of Professor David R. Kamerschen, a professor of economics at the University of Georgia, was submitted in addition. Kamerschen recognized that below-cost pricing is seldom prudent. He noted that the per se rule, as stated in the Act, has advantages in that it offers certainty among businesses with respect to the legality of their pricing schemes. Kamerschen estimated that the Act will ultimately hélp more dealers survive in the market place because more dealers will be able to survive competitive price battles.
The affidavit of Al Heringer, the president of Lone Star, was submitted in support of the appellees’ cross-motion for summary judgment. He stated that the purchase of fuel is extremely price sensitive regardless of whether it is branded or unbranded. According to Heringer, the fact that a company sells unbranded fuel makes no difference because neither can survive without making a profit.
A hearing was held on the motions, and arguments of counsel were made. The trial court granted summary judgment in favor of the appellees. In its order, the court found:
1. Motor fuel is a commodity of general use and consumption and is impressed with the public interest for purposes of regulation under the State’s police power.
2. The purposes of Act 380 of 1993, subtitled the Arkansas Petroleum Trade Practices Act (the “Act”), as set forth in Section 3 of the Act are proper purposes for the exercise of the State’s police power.
3. The prohibition of sales of motor fuel at below cost to the retailer of motor fuel unless such sales are exempt under the Act is a reasonable means to accomplish the Act’s purposes.
4. The Act is not preempted by federal anti-trust law.
5. The act is rationally related to a legitimate state purpose and does not violate the Arkansas Constitution or the United States Constitution.
The pertinent sections of the Act are sections 3 and 4:
SECTION 3. PURPOSE.
(b) Independent and small dealers and distributors of motor fuel are vital to a healthy, competitive market place, but are unable to survive subsidized below-cost pricing at the retail level by others who have other sources of income. Fair and healthy competition in the marketing of motor fuel provides maximum benefits to consumers in this state, and certain marketing practices which impair such competition are contrary to the public interest. Predatory pricing practices are unfair trade practices and restraints which adversely affect motor fuel competition. Subsidized pricing is inherently predatory because it is unfair and destructive to, and reduces competition in, the motor fuel marketing industry. . . .
(c) Recovery under the anti-trust laws has become increasingly difficult due to the requirement of establishing an “antitrust injury.” The legislature has determined that subsidized and predatory pricing presumptively injure competition by damaging independent dealers and distributors of motor fuel. Proof of “antitrust injury” is unnecessary to recover under this act.
SECTION 4. SALES BELOW COST TO RETAILER, (a) No dealer shall make, or offer or advertise to make, sales at retail at below cost to the retailer of motor fuel, where the effect may injure competition, unless such sales at retail are exempt under Subsection (c) or (d) of this Section. . . .
(c) Nothing in this section shall prohibit a dealer from making, or offering or advertising to make, sales at retail of motor fuel which are made in good faith to compete with the equally low or lower retail price of a competitor. However, while the previous sentence allows a dealer to make, offer or advertise, sales at a price equal to the price of a competitor, it does not authorize such dealer to make, offer or advertise to make, sales at retail at a price below such competitor if such sales would be in contravention with the provisions of this section.
(d) The provisions of this section shall not apply:
(i) Where motor fuel is advertised, offered for sale, or sold in a bona fide clearance sale. . . .
(ii) Where motor fuel is sold upon the final liquidation of a business; or
(iii) Where motor fuel is advertised, offered for sale, or sold . . . under the order or direction of any court; or
(iv) Where motor fuel is sold during a grand opening to introduce a new or remodeled business. . . .
The Act then provided that violation would subject the offender to civil penalties of $1,000 a day and three times the amount of actual damages for knowing and willful violations. A showing that the cost exceeded the price constitutes a prima facie case. The Act states that it is “remedial” and should be “liberally construed.”
This case is one of first impression in Arkansas in that it provides the first opportunity for this court to decide whether the General Assembly may constitutionally abrogate a business’s right to sell fuel below cost when there is no requirement that the business intended to put its competition out of business or even to damage it. Indeed, we have found that there is a paucity of authority on this precise point from other jurisdictions as well.
It is true, as the appellees underscore, that statutes are presumed constitutional in Arkansas, and if it is possible to construe a statute so as to pass constitutional muster, we will do so. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991); Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988). It is also true that if a statute is penal in nature, it is strictly construed in favor of the offender. Wal-Mart Stores, Inc. v. American Drugs, Inc., 319 Ark. 214, 891 S.W.2d 30 (1994); State Farm Mut. Auto Insur. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994). The penalties in Act 380 render it a clear penal statute, and we must strictly construe it in favor of Ports Petroleum. This is so, even though the Act itself states that it should be liberally construed.
We have no hesitation in affirming the trial court on the point that the subject matter of Act 380 falls within the General Assembly’s police powers to regulate an industry of general public interest. Unlike the State of Georgia [see Strickland v. Ports Petroleum Co., Inc., 353 S.E.2d 17 (Ga. 1987)], we have taken an expansive view of the State’s general ability to regulate professions and businesses under its police powers. See Noble v. Davis, 204 Ark. 156, 161 S.W.2d 189 (1942) (regulatory authority of state over barbers proper in general, though price- fixing act in question was not a legitimate exercise of state police powers). We have further stated that a commodity of general use and consumption like ready-mixed concrete is impressed with a public interest and, thus, subject to regulation under the police powers of the state. Concrete, Inc. v. Arkola Sand and Gravel Co., 230 Ark. 315, 322 S.W.2d 452 (1959). The question then becomes whether the police powers have been used by Act 380 to interfere arbitrarily with the business rights of Ports Petroleum and, thus, violate the due process clause of the Arkansas Constitution. We conclude that that is the case.
The issue of an impermissible exercise of state police powers was raised in Union Carbide & Carbon Corp. v. White River Distrib., Inc., 224 Ark. 558, 275 S.W.2d 455 (1955). There, the appellant argued that it had the right under the Act in question to require all retailers of Prestone antifreeze to sell its product at a fixed price. This court disagreed and cited Ark. Const. art. 2 § 8, which states that no one can be deprived of property without due process of law. We also observed that the General Assembly has no right to take away a valuable property right unless it has the right by virtue of its inherent police power to protect the public welfare. We concluded:
We recognize that competition is preserved to a degree under the provisions of the Act, but it must be admitted that it is also restricted to a degree. The Act can be sustained only if it enhances the general welfare and not if it restricts it to only a small extent.
The exercise of the [police] power must have a substantial basis and cannot be made a mere pretext for legislation that does not fall within it. The Legislature has no power, under the guise of police regulations, arbitrarily to invade the personal rights and liberty of the individual citizen, to interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights.
Union Carbide, 224 Ark. at 563, 566, 275 S.W.2d at 458, 460. We held that the price-fixing statute violated the due process clause of the Arkansas Constitution.
Admittedly, the distinction between predatory practices and competitive pricing may appear to blur at times. But one point has been made abundantly clear by both this court and the U.S. Supreme Court — the mere fact of cutting prices does not equate to a predatory practice. In Wal-Mart Stores, Inc. v. American Drugs, Inc., supra, we examined a provision of the Arkansas Unfair Practices Act, which included a prohibition against below-cost sales “for the purpose of injuring competitors and destroying competition.” Ark. Code Ann. § 4-75-209(a)(1) (Repl. 1991). We held that the use of loss leaders was not enough to infer an intent to destroy competition, as the trial court had done. We added that we were not willing to interpret the Act to contemplate a prima facie case of predation absent a clear directive from the General Assembly. We did not reach the issue, however, of whether eliminating predatory intent altogether would comply with constitutional mandates. We quoted with approval from an Eighth Circuit Court of Appeals case concerning the difference between predation and competition relative to lowering prices:
The difficulty, of course, is distinguishing highly competitive pricing from predatory pricing. A firm that cuts its prices or substantially reduces its profit margin is not necessarily engaging in predatory pricing. It may simply be responding to new competition, or to a downturn in market demand. Indeed, there is a real danger in mislabeling such practices as predatory, because consumers generally benefit from the low prices resulting from aggressive price competition. See e.g., Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 231 (1st Cir. 1983).
Wal-Mart Stores, Inc., 319 Ark. at 222, 891 S.W.2d at 35; quoting Morgan v. Ponder, 892 F.2d 1355, 1358-1359 (8th Cir. 1989).
The U.S. Supreme Court in interpreting federal antitrust laws has acknowledged that the purpose of those laws is to permit vigorous price competition and is not to protect firms from losing profits due to competition. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104 (1986). The Court noted the perverse result that might flow from disallowing firms to reduce prices to enhance market share:
“[T]he mechanism by which a firm engages in predatory pricing — lowering prices — is the same mechanism by which a firm stimulates competition; because ‘cutting prices in order to increase business often is the very essence of competition . . .; mistaken inferences . . . are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’ ” Cargill, supra, 479 U.S., at 122, n. 17, 107 S.Ct., at 495, n. 17 (quoting Matsushita, supra, 475 U.S., at 594, 106 S.Ct., at 1360). It would be ironic indeed if the standards for predatory pricing liability were so low that antitrust suits themselves became a tool for keeping prices high.
Brook Group, Ltd. v. Brown & Williamson Tobacco Corp., 113 S. Ct. 2578, 2589-2590 (1993).
What separates predation from legitimate price cutting is the intent of the predator to damage and destroy competition and then recoup the losses through a greater share of the market. Brook Group, Ltd. v. Brown & Williamson Tobacco Corp., supra. The one case from a foreign jurisdiction that involved a state statute regulating sales below cost that approximates the facts of the present appeal is State v. Mapco Petroleum, Inc., 519 So. 2d 1275 (Ala. 1987). In that case, the Alabama Supreme Court first noted the shift in analysis caused by Nebbia v. New York, 291 U.S. 502 (1934). In Nebbia, the U.S. Supreme Court held that state economic regulation of businesses withstood due process challenges unless the regulation was arbitrary, discriminatory or demonstrably irrelevant to the policy that the legislature is free to adopt, all of which equated to an interference with individual liberty. The Alabama Supreme Court then adopted a standard to use when reviewing state economic regulations for a due process violation:
Generally speaking, the test is whether the legislation is designed to accomplish an end within legislative competence and whether the means it employs are reasonably designed to accomplish that end without unduly infringing upon protected rights. . . . Specifically, in these “sale below cost” cases, the primary issue will be whether the legislation too broadly imposes restrictions on individuals’ liberty to conduct their business as they choose. If the act penalizes innocent acts not reasonably related to the problem of monopolistic practices or other deceptive, disruptive, or destructive price cutting, the act strikes too broadly.
Mapco Petroleum, 519 So. 2d at 1284-1285.
The Alabama Supreme Court then went forward and construed the state’s Motor Fuel Marketing Act to prohibit below-cost sales that tended to destroy or substantially lessen competition. But the Court further read into the Act the ability of a defendant to offer the defense of an absence of harmful intent, after the plaintiff had made a prima facie case by showing a sale below cost with an injurious effect on competition. What distinguishes the Alabama Motor Fuel Marketing Act factually from the Arkansas Petroleum Fair Practices Act is the Alabama Act does require predatory intent in one section, where Act 380 is devoid of any such provision. Hence, the Mapco decision offers little precedential guidance for the case at hand.
Nevertheless, the standard employed by the Alabama Supreme Court in Mapco of whether the Act works too broad an impingement on individual liberty is useful. We observe that this standard bears a strong kinship to the one adopted by this court in Union Carbide & Carbon Corp. v. White River Distrib., Inc., supra, which is quoted above. In the instant case, there is a laudable purpose stated in Act 380 — to foment competition and prevent predation by prohibiting subsidized below-cost pricing at the retail level, which can have a deleterious impact on competition. But is Act 380 reasonably designed to accomplish that purpose? We think not. Indeed, in some instances the Act appears to have exactly the opposite effect from its stated purpose, and the plight of Ports Petroleum is a case in point. The flip side of prohibiting below-cost pricing is that smaller enterprises and single retail outlets (the mom and pop stores) are not able to use this strategy as a means of attracting customers and, thereby, competing with larger firms. Though completely free and innocent of predatory intent, these smaller outlets are foreclosed by the Act from engaging in a pricing mechanism that is one of the few competitive tools they have at their disposal.
The appellees urge that Act 380 bears a rational relationship to a legitimate objective of state government, and for that reason it cannot be the product of arbitrary action. See Arkansas Hosp. Ass’n v. Arkansas State Bd. of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). But we cannot agree that legislation which hampers innocent and legitimate competition can in any wise be deemed to be rational irrespective of the goal to be accomplished.
We conclude that Act 380 is overbroad in that it prohibits legitimate and innocent competition fostered by below-cost sales. Had the Act included a prohibition against such sales made with predatory intent to damage and destroy competition comparable to what the Arkansas Unfair Practices Act [Ark. Code Ann. § 4-75-209(a)(l) (Repl. 1991)] provides, due process impairment would not be a concern. But here legitimate and innocent below-cost strategies are precluded, and that is a burden on legitimate competition that we cannot condone. Because we reverse due to the absence of an intent to damage and destroy competition, we need not address Ports Petroleum’s associated argument that the Act is also deficient in eliminating the element of antitrust injury.
We hold that Section 4 of Act 380 of 1993 violates the due process clause of the Arkansas Constitution and is void and of no effect. To the extent Section 4 is independent from the balance of the Act, its invalidity shall not affect the other provisions and applications of the Act. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), aff'd_U.S__, 115 S. Ct. 1842, 129 L. Ed.2d (1995); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965).
Reversed and remanded for entry of an order consistent with this opinion. | [
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Robert H. Dudley, Justice.
Best Enterprises, Inc., charges a fee to place its portable toilets at customers’ sites. The fee includes charges for pumping, cleaning, sanitization, and waste-disposal services for the toilets. The Department of Finance & Administration audited Best’s records, administratively ruled that Best’s operation was subject to the gross-receipts tax, and assessed a deficiency. Best paid the assessment, penalty, and interest under protest and filed suit for judicial relief in the chancery court. See Ark. Code Ann. § 26-18-406(a)(l) (Repl. 1992). The chancellor ordered the tax, penalty, and interest refunded. We reverse and dismiss.
In its complaint, Best alleged that Ark. Code Ann. § 26-52-103(a)(3)(E) excludes from gross-receipts taxation, with certain exceptions, furnishing or rendering of a service, and that Ark. Code Ann. § 26-52-301(2) exempts sewer services from the gross-receipts tax. The Director answered that Best’s lease of portable toilets was not excluded from taxation because the lease was an integral part of the business and, since the lease and the attendant cleaning services were not separated, it contended that the transaction was subject to taxation. The Director additionally answered that Best was not exempt from taxation as a sewer service because Best is not a utility or public service and only those entities are exempt.
The facts, which are largely undisputed, show that Best purchases portable toilets out of state, takes the toilets to its base of operation in Cabot and, from there, delivers the toilets to the customers’ sites. After placing a portable toilet on a customer’s site, Best provides pumping, cleaning, sanitation, and waste disposal services for the unit. It charges one fixed price for both the use of portable toilets and the attendant services. The fixed price is determined by using a chart that was formulated by Best. The fixed price includes the cost of the toilet and other equipment such as the service truck and chemicals, toilet tissue, gloves, boots, and uniforms; the cost of fuel for its truck and time for travel by service personnel to the site; and the cost of labor. The cost of equipment constitutes about eleven percent of the fixed price, and the cost of toilets amounts to about five percent of the fixed price.
When a customer calls for a portable toilet, Best inquires about the number of people who will use the facility, the location, and the length of time the toilet or toilets will be needed. After receiving the information, Best determines the fixed price by using its chart. The customer signs a written contract. The toilet is delivered and subsequently serviced at least once a week. The frequency of service depends upon the number of people using the toilet. If a toilet is overused, the customer is informed and either frequency of service is increased or the number of toilets is increased, and the fixed price is increased. The customer is billed every four weeks.
Most of the portable toilets are leased to contractors for use at construction sites. A six-month lease would be considered a short lease; some toilets have been on site since 1987. Best will supply a toilet for only one week, but the fixed charge is about the same as for four weeks.
Servicing the toilets includes pumping waste to the truck, recharging the holding tank with chemicals, deodorizing, cleaning, disinfecting, replacing toilet tissue, removing graffiti, and maintenance. The waste is transported by a service truck to Cabot where it is stored in larger tanks until disposed at a municipal waste-water treatment facility.
The chancellor ruled that providing portable toilets to customers did not constitute the rental of tangible personal property, but rather that Best is engaged in providing sewer and sanitation services which are exempt from taxation. We reverse and dismiss.
The Director’s first point of appeal is that the chancellor erred in ruling that providing portable toilets did not constitute, in part, the rental of tangible personal property. The point is well taken.
Rentals of tangible personal property are taxable. Ark. Code Ann. § 26-52-103(a)(3)(B) (Repl. 1992). In determining whether a transaction constitutes a lease that is taxable under the Gross Receipts Act, we look to all of the factors involved to determine the true nature of the transaction. Leathers v. A & B Dirt Movers, Inc., 311 Ark. 320, 844 S.W.2d 314 (1992). No specific words are necessary to create a lease, but the words that are used must have the effect of divesting the owner of the right to the possession of his property and, for a consideration, investing the other party with the right to possession for a designated period or at will. Harbottle v. Central Coal & Coke Co., 134 Ark. 254, 203 S.W. 1044 (1918). Best’s form contract states that it will “supply the sanitation units” and that the customer will “retain absolute and sole control, possession, and custody of the sanitation units and return such units to the contractor at the end of the service period.” It further provides that if the toilet is damaged, other than from ordinary wear and tear, the customer is liable for the damages, the customer cannot make alterations or make attachments to the toilets without Best’s permission, and the customer will return the toilet to Best at the end of the contract period. One of Best’s exhibits introduced at trial was basic industry data published by the School of Business and Public Administration of Howard University. It provides: “As a part of the cost of renting units, the portable sanitation contractor services on a regular basis.” One of Best’s employees admitted that the customers frequently called the transaction a rental of portable toilets.
In summary, Best, for a consideration, divested itself for a period of time of the right to the possession of its portable toilets, and invested the customer with the right of possession of its property. The transactions fit within the definition of leases, and we hold that they were leases. Similarly, a Tennessee court of appeals recently held that providing portable toilets to customers constituted a lease of toilets. Essary v. Huddleston, WL 384985 (Tenn. App. 1995).
The chancellor ruled that Best was not in the business of leasing portable toilets, but rather was a public utility providing sewer services, which are exempt from the gross-receipts tax. The Director also assigns this part of the ruling as error. The assignment has merit for two reasons.
First, sanitation services are provided for the portable toilets leased by Best. Manifestly, the leasing of the portable toilets is an integral part of Best’s business. Best offered testimony that it would service toilets owned by another company, but it did not deny that it primarily serviced its own toilets. Thus, it cannot be said that Best was solely providing sewer services.
Second, it is undisputed that part of the fixed charge is related to the cost of the toilets. Best estimated this to be approximately five percent of the charge. If the charges for the toilets and services had been separately stated, the amount charged for services would not have been taxable. However, since the nontaxable service was included as part of the total consideration received from the rental of the portable toilets, the charge for services constitutes part of the gross proceeds, and the entire proceeds are subject to taxation.
In Ferguson v. Cook, 215 Ark. 373, 220 S.W.2d 808 (1949), a monument dealer sought to deduct the cost of labor necessary to make and install monuments from the sales price. We held that the entire sales price was subject to the tax because the statute that is now codified as Ark. Code Ann. § 26-52-103, states in pertinent part:
“Gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction on account of the cost of the properties sold, labor service performed, interest paid, losses, or any expenses whatever.
Ark. Code Ann. § 26-52-103(a)(4) (emphasis added). We concluded that “where one sells an article in the preparation of which for sale he has expended labor, which adds to its value and was necessary to make it salable, he must pay the sales tax on the price received, without deduction for the value of the labor performed.” Ferguson v. Cook, 215 Ark. at 376, 220 S.W.2d at 810 (emphasis added).
In Larey v. Dungan-Allen, 244 Ark. 908, 428 S.W.2d 71 (1968), the appellee taxpayer was a corporation engaged in commercial photography. Id. at 908, 428 S.W.2d at 72. The Director sought to tax it under the section of the act that levies the tax under “photography of all kinds.” Id. The taxpayer argued that eighty-five percent of its revenue was recompense for services because in the course of its business, its employees “frequently [had] long consultations with their patrons about matters such as advertising layouts, promotional planning, material for magazine publication, and other activities going beyond the mere taking and developing of pictures.” Id. at 909, 428 S.W.2d at 72. One of the principal stockholders testified that taking pictures was “the least of what they [did].” Id. The stockholders offered testimony that for a day’s work an advertising agency might be charged $200 for photographic services and $10 for five different pictures. Id. at 910, 428 S.W.2d at 72. The taxpayer argued that “the incidence of the gross-receipts tax should be similarly divided between nontaxable revenue from professional services and taxable revenue from the taking of pictures.” Id. We stated that we had previously rejected such an argument in Ferguson v. Cook, 215 Ark. 373, 220 S.W.2d 808 (1949). We concluded by stating that while the tax would not apply in instances where the taxpayers “were paid for services only, such as consultations, without any photographs being involved . . . the principle cannot be extended to the point of separating the sale of the photograph from the exercise of that skill ‘which adds to its value and was necessary to make it salable.’ ” Larey v. Dungan-Allen, 244 Ark. at 911, 428 S.W.2d at 73 (citation omitted).
In Ragland v. Miller Trane Service Agency, 274 Ark. 227, 623 S.W.2d 520 (1981), the taxpayer was in the business of inspecting, servicing, and repairing commercial heating and cooling devices and had two different types of contracts. Id. at 228, 623 S.W.2d at 521. The first was an “inspection only” contract, and the Director agreed it was nontaxable. Id. at 229, 623 S.W.2d at 521. The second contract provided for the taxpayer to maintain and repair the units, in addition to inspecting them, a minimum of three times a year. Id. The trial court found that the full-coverage contract could be broken down into component parts for the purposes of collecting the gross receipts tax. In reversing, we stated that, under the rationale of our established case law, the inspection services enhanced the value of the full coverage contract, and increased the marketability of the taxable services; therefore, the entire transaction was taxable. Id. at 231, 623 S.W.2d at 522.
Most recently, in Leathers v. A & B Dirt Movers, Inc., 311 Ark. 320, 844 S.W.2d 314 (1992), the taxpayer was a dirt hauler who contended that it provided the nontaxable service of hauling free dirt. Id. at 322, 844 S.W.2d at 315. The chancellor ruled that the transactions were not taxable. Id. We reversed because the taxpayer’s records made the transaction appear as though it involved a sale of dirt, even though the record was devoid of any direct testimony that proved the sale of dirt. Id. at 330, 844 S.W.2d at 319. We held that Ark. Code Ann. § 26-18-506(a) & (d) (1992) requires a taxpayer to keep adequate tax records, and when a taxpayer fails to maintain the required records, the Director may make an estimated assessment of tax due, as “the burden of proof of refuting this estimated assessment is upon the taxpayer.” Id. at 325, 844 S.W.2d at 316-17; Ark. Code Ann. § 26-1 ¿-506(d). We concluded that the transactions were taxable, because they involved the transfer and possession of tangible personal property.
In summary, just as in Leathers v. A & B Dirt Movers, Inc., the taxpayer’s records show the transactions were leases. The transactions were the type of mixed transactions that are fully taxable under Larey v. Dungan-Allen and its progeny. Finally, because Best did not maintain the required records, the burden of refuting the assessment was upon the taxpayer, Leathers v. A & B Dirt Movers, Inc., 311 Ark. at 325, 844 S.W.2d at 316-17, and Best did not meet that burden.
Best urges us to adopt a “dominant-use test” for this case. To do so would require us to reject the reasoning of the above cases, and we decline to do so.
The chancellor ruled that Best was entitled to a refund on the additional ground that it provided sewer and sanitation services in the furtherance of public health, and those services are nontaxable. The Director assigns the ruling as error.
Arkansas Code Annotated § 26-52-301 levies an excise tax upon utilities or public service companies “except transportation services, sewer services, and sanitation or garbage collection services.” Id. § 26-52-301(2). In short, utilities or other public services are subject to the tax, except for their transportation services, sewer services, and sanitation services. To prove that it comes within the exemption, Best must have proved that it was a utility or public service company engaged in sewer services.
In Ragland v. Meadowbrook Country Club, 300 Ark. 164, 777 S.W.2d 852 (1989), we said, “The difference between an exclusion and an exemption is that an exemption pertains to sales that would be covered were they not specifically exempted from the Act, while exclusion is simply not included in the first place.” Id. at 168, 777 S.W.2d at 854. Stated differently, an exemption “presupposes a liability, and is properly applied only to a grant of immunity to persons or property which otherwise would have been liable to assessment, and exists only by virtue of constitutional or statutory provisions.” 84 C.J.S. Taxation § 215 at 411 (1954). A taxpayer must prove entitlement to an exemption beyond a reasonable doubt. City of Fayetteville v. Phillips, 320 Ark. 540, 899 S.W.2d 57 (1995). Best failed to prove beyond a reasonable doubt that it was exempt from taxation as a utility or public service.
Best did not prove that it was regulated by the Arkansas Public Service Commission or the Arkansas Transportation Commission, that a city, state board, or commission had authorized it to service a territory, or that its rates were regulated by an official agency. In short, it failed to prove that it was a public utility as contemplated by Ark. Code Ann. § 23-1-101.
In Quinn-Moore v. Lambert, 272 Ark. 324, 614 S.W.2d 230 (1981), we said that a public utility is entitled to a guaranteed but limited return on its investment, and it cannot pick and choose whom it will serve, while a private entrepreneurship is entitled to pick and choose whom it will serve, but is not entitled to a guaranteed return on its investment. Id. at 328, 614 S.W.2d at 232. Indeed, the term “public utility” implies a public use and service to the public, and the principal determinative characteristic of a public utility is service to, or a readiness to serve, an indefinite public that has a legal right to demand and receive its services or commodities. See 64 Am. Jur. 2d Public Utilities § 1 at 549 (1972). A public utility holds itself out to the public generally and may not refuse any legitimate demand for service, while a private business independently determines who it will serve. The record is devoid of any evidence that Best is required to serve any area, or indefinite public, or that it is entitled to a return on its investment.
In addition, the lease and service of a toilet does not fit within the definition of a public utility sewer service. Section 8-4-102 of the Arkansas Code Annotated defines “sewage” and “sewer system” as follows:
(1) “Sewage” means the water-carried waste products from residences, public buildings, institutions, or other buildings, including the excrementitious or other discharge from bodies of humans or animals, together with such groundwater infiltration and surface water as may be present.
(5) “Sewer system” means pipelines or conduits, pumping stations, and force mains, and all other constructions, devices, and appliances appurtenant thereto, which are used for conducting sewage or industrial water or other wastes to a point of disposal.
Ark. Code Ann. § 8-4-102(1) & (5) (Repl. 1993). In summary, Best failed to prove beyond a reasonable doubt that it was exempt as a public sewer service.
We need not address the Director’s final point of appeal. Reversed and dismissed.
Newbern and Corbin, JJ., dissent. | [
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Per Curiam.
Based upon the order and findings of the Miller County Circuit Court and the supreme court’s present petition, we hereby order that David William Malaby, Jr., be barred from the practice of law in the State of Arkansas and direct that his name be removed from the list of attorneys authorized to practice law in this state. | [
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Per Curiam.
Petitioner, Michael Wayne Byrd, by his attorney, Scott E. Smith, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Robert L. Brown, Justice.
Appellant Jimmy L. King appeals his conviction for aggravated robbery and first-degree battery and his sentence of 60 years. He contends that the circuit court erred in refusing to suppress a photo lineup and in-court identification. We conclude that the circuit court ruled correctly, and we affirm.
On April 17, 1993, Tammy Akins, Kristine Barnette (now Templeman), Lynette Oliver, and Kelly Eaves (now Barnette) drove to Fat Jacks Oyster Bar in Texarkana to celebrate Kelly Eaves upcoming marriage. When they arrived, they parked in the last row of parking places. Eaves, who was driving, turned the car off and opened her door to get out. Akins and Barnette were in the back seat. Barnette’s door was locked so she reached across Akins and opened her door, while Akins was rummaging through her purse. As the door opened, a man leaned into the car and said, “Give me all your money.” Akins responded sharply that the man was not getting her money. The man then put a gun to her chest, and Akins kicked him in the stomach. The man leaned back into the car, shot her, and fled.
Eaves started the car, drove to an E-Z Mart down the street, and called the Texarkana Police Department. Akins did not realize that she had been shot until about an hour later when she began breathing irregularly and was rushed to the hospital. The bullet had pierced her stomach twice before becoming embedded in a mass of muscle.
On April 18, 1993, the day after the shooting, Sergeant Mike Mauldin of the Texarkana Police Department conducted a photographic lineup consisting of several sheets of pictures in which King’s picture was included. These lineups were separately shown to Kelly Eaves and Kristine Barnette. Neither could make an identification. On May 11, 1993, these same photographs were shown to the victim, Tammy Akins. She, too, was unable to make an identification.
On May 25, 1993, Tammy Akins was shown a second photo lineup of six photographs, where a different, more recent picture of King was included. All six men photographed had some facial hair. King was the only person included in both lineups. This time Akins tentatively identified King as the person who shot her. This same photo lineup was shown to Kristine Barnette on May 28, 1993, and Barnette positively identified King as the perpetrator.
Based on these identifications, King was charged with aggravated robbery and first degree battery. Prior to trial, King moved to have the photo lineups, as well as any subsequent in-court identification, suppressed on the basis that the pretrial lineups were unduly suggestive. Both motions were denied. At trial, Tammy Akins and Kristine Barnette positively identified King as the offender. King was ultimately convicted by a jury on both counts and sentenced to sixty years imprisonment.
King urges on appeal that the circuit court erred in denying his motion to suppress the pretrial identifications and the in-court identifications by Tammy Akins and Kristine Barnette. He contends that the identifications should have been suppressed because the pretrial identification procedure was unduly suggestive and tainted the later in-court identifications. He then argues that the identifications should have been excluded because they lacked sufficient indicia of reliability. Neither argument has merit.
A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). But even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Neil v. Biggers, 409 U.S. 188 (1972); Monk v. State, supra; Bishop v. State, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); see also Neil v. Biggers, supra.
King contends that the pretrial photo lineups were unduly suggestive because his photograph was the only one that appeared in two separate lineups, thus suggesting his identification and creating a likelihood of misidentification. Secondly, he contends that the photo spreads were unnecessarily suggestive because of the State’s failure to create a lineup consistent with the witnesses’ description of the suspect. Both arguments are without merit.
This court is hindered in deciding this issue with respect to the first photo lineup because the photos in the lineup were not preserved by the Texarkana police, with the exception of the photograph of King. Thus, we are unable to determine whether King’s photograph from the first lineup was so different from the others as to single him out and, thereby, taint his identification in the second lineup. See Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994). Nevertheless, in viewing the pictures in the second lineup in conjunction with the photograph of King from the first lineup, we conclude that the process was not unduly suggestive. First, the two photographs of King are differ ent. In the second photograph used in the second lineup, his hair is longer, and his moustache is fuller. Moreover, and most importantly, there is nothing in the second lineup which would direct a witness toward King as the primary suspect. In fact, Akins had trouble distinguishing between two of the photographs included in the second lineup when testifying at the suppression hearing. Nor has there been any legitimate insinuation that Sergeant Mauldin sought to influence the identification by the methods he used in presenting the photographs. See Foster v. California, 394 U.S. 440 (1969). Finally, this court in Monk v. State, supra, stated that the fact the defendant was the only person included in both a photographic lineup and a physical lineup did not, in itself, render the identification unduly suggestive. See also Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). The same rationale should apply here.
King also maintains that the second photo lineup was unduly suggestive because the photographs were not consistent with the witnesses’ description of the suspect. This specific argument was not ruled upon by the trial court and thus is not preserved for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).
King’s final argument is that the identifications were unreliable. Though the bulk of the reliability factors cited above appear to be satisfied, we need not address them because we hold that the process involved was not unduly suggestive. Again, this court will not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, supra; Moore v. State, 304 Ark. 558, 803 S.W.2d 553 (1991). It was for the jury to evaluate the weakness or strength of the identification testimony, and we cannot say that the circuit court abused its discretion in admitting the evidence. See Monk v. State, supra.
Affirmed. | [
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Robert L. Brown, Justice,
dissenting. Counsel for Kathryn Lynn King filed a motion for rule on the clerk to allow him to lodge the record in this case. According to the motion, counsel who practices law in Texarkana obtained an order of extension from Judge John Lineberger, who is a chancellor for the Fourth Judicial District in Fayetteville, prior to the expiration of the time for filing. That order was then received by the Polk County Circuit Clerk in the Eighteenth Judicial District via facsimile transmission before time expired. The motion further states that the attorney’s office telephoned the clerk’s office to verify that the order had been timely filed, and the circuit clerk’s office gave assurances that it had. In truth, the order granting the extension was not filed until one day after the expiration of the deadline. The majority would deny this motion. I would remand for an evidentiary hearing, and for that reason I dissent.
The general rule is that an attorney is responsible for filing the record, not the trial judge, the court reporter, or the circuit clerk. Norman v. State, 323 Ark. 444, S.W.2d (1996); Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988). Likewise, it is the attorney’s responsibility to ensure that the order granting an extension of time to file the record is actually entered even though it may have been signed by the trial court and sent to the clerk prior to the expiration of the filing period. See Willis v. State, 323 Ark. 41, 912 S.W.2d 430 (1996) (facsimile received by clerk but not actually entered before deadline expired was untimely); Voyles v. Voyles, 311 Ark. 186, 842 S.W.2d 21 (1992); Sullivan v. Wickliffe, 284 Ark. 33, 678 S.W.2d 771 (1984). We have, however, carved out an exception to the rule in instances where actions by the court clerk somehow thwarted the attorney in performing his duties. I believe this is just such a case.
In Brown v. State, 300 Ark. 201, 777 S.W.2d 585 (1989), an order extending the time to file the record for appeal was entered, but the record was received four days late. Counsel for Brown filed a motion for rule on the clerk. The attorney alleged:
[T]hat he was prevented from meeting his responsibility for filing a timely record in that the circuit clerk has been instructed by the circuit judges “to not turn over the transcripts in any criminal cases to defense attorneys appealing them, but to take care of mailing the transcripts themselves.”
Brown v. State, 300 Ark. at 202, 777 S.W.2d at 586. We remanded the case to the trial court because if the allegation was true and the attorney was prevented from performing his duty, good cause existed to grant the motion.
This is not to say that blind reliance on statements by the circuit clerk will circumscribe the rule, for we have ruled to the contrary. See, e.g., Lewis v. State, supra. (holding attorney responsible for an untimely filing, even though he relied on the circuit clerk’s oral and written representations about when the time for filing the record began to run); Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970) (holding attorney responsible for an untimely filing, where the filing fee was not paid even though deputy clerk agreed to mail the transcript for the attorney). These cases show that reliance on the clerk by itself may not be enough.
However, I believe that the attorney did what was reasonable under these circumstances. He realized that the record would not be prepared in time, and he obtained an order of extension from the trial judge, who presumably was in Fayetteville. The order was then timely received by the circuit clerk via facsimile transmission. In the motion, the attorney who is an officer of the court represented to this court that his office made a follow-up telephone call to the Polk County Circuit Clerk’s office, and personnel there assured him that the order had been signed, filed, and granted. This was not a situation where counsel could go down to the courthouse to verify the filing because the filing was to occur in another county.
The attorney’s actions were reasonable and satisfy the procedure suggested by the court of appeals in Tracor/MBA v. Artissue Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993). In Tracor/MBA, the Court of Appeals stated that the document which was transmitted by way of facsimile machine should be sent early enough so that a follow-up telephone call could verify its receipt and allow other action, if necessary, to perfect the filing. According to counsel for the appellant, the assurance from the circuit clerk’s office that the document had been filed misled him and prevented him from fulfilling his obligations. I would remand this case to the trial court to determine whether counsel was indeed misled, as was done in Brown v. State, supra.
For these reasons, I respectfully dissent.
Roaf, J., joins. | [
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Robert H. Dudley, Justice.
This is a zoning case. Appellee M & N Mobile Home Park, Inc., purchased 7.19 acres of land in Lowell in 1971. Between 1971 and 1986, it operated a mobile-home park on slightly less than two of the acres. The other five acres remained unoccupied. In 1986, the city passed a zoning ordinance that designated the two acres as MHP, zoned for a mobile-home park, and designated the remaining five acres as R-l, for single-family dwellings. In 1994, appellee petitioned the planning commission to rezone the five acres to MHP so that it could utilize the full seven acres as a mobile-home park. The planning commission denied the application. Appellee appealed to the city council. The council upheld the commission. Appellee filed suit and asked the chancery court to rezone the five-acre tract to MHP because the action of the city council was arbitrary. The trial court granted the relief and rezoned the five acres as MHP. We reverse and dismiss.
I.
A. Constitutional Provisions
The powers of government are divided into three separate branches of government. Ark. Const, art. 4, § 1. The legislative power of state government is vested in the General Assembly with the right of the initiative and referendum reserved to the people. Ark. Const. amend. 7, § 1. The General Assembly can delegate the legislative power to enact ordinances to municipal corporations. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904). We have written that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly, and consequently, an act of a municipality is the co-equal of an act of the General Assembly. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). The General Assembly has given to municipal corporations the power to enact zoning ordinances. Ark. Code Ann. 14-56-402 —14-56-425 (1987). A municipal corporation’s exercise of its zoning power is the co-equal of an act by the General Assembly.
The legislative power includes discretion to determine the interests of the public as well as the means necessary to protect those interests. Within constitutional limits, the legislative branch is the sole judge of the laws that should be enacted for the protection and welfare of the people and when and how the police power of the State is to be exercised. Missouri & North Arkansas R.R. Co. v. State, 92 Ark. 1, 121 S.W. 930 (1909).
One branch of government shall not “exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. For each branch to operate as constitutionally envisioned, one branch must not be subordinated to either or both of the other branches, and one branch must not take control of one or both of the other branches. The legislative branch has discretion to determine the interests of the public, but the judicial branch has the power to set aside legislation that is arbitrary, capricious, or unreasonable. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). This is a limited power, and the judiciary, in acting under this limited power, cannot take away the discretion that is constitutionally vested in a city’s legislative body. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1971). The chancery court has subject-matter jurisdiction to determine whether a zoning enactment is arbitrary, capricious, or unreasonable. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994); City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971).
This court’s foundation case involving zoning and the separation-of-powers doctrine is Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). There we wrote:
[The city council’s] action is final unless we can say that the council abused its discretion. But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action.
The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears.
Id. at 256, 275 S.W.2d at 325 (citations omitted). In recent years, we have frequently written that the judicial branch does not have the authority to review zoning legislation de novo, as that would constitute an unconstitutional taking of the power of the legislative branch. See, e.g., Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983); City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979).
B. The Pfeifer case
There was an aberration in our case law, which is set out only to show that it existed and that it has ended. Shortly after we correctly decided the foundation case of Herring v. Stannus, we decided City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), and in essence, held that the review of zoning appeals could be by trial de novo rather than by solely determining whether the enactment by the legislative branch was arbitrary. The effect was to judge the wisdom of the enactment in violation of the separation-of-powers doctrine. We began to retreat from the Pfeifer doctrine in the 1953 case of Evans v. City of Little Rock, 221 Ark. 252, 253 S.W.2d 347 (1953), and backed further away from it in the 1966 cases of Downs v. City of Little Rock, 240 Ark. 623, 401 S.W.2d 210 (1966) and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966). The Pfeifer doctrine led to criticism. Morton Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969); Morton Gitelman, Zoning — The Expanding Business District Doctrine in Arkansas: An Obstacle to Land Use Planning, 28 Ark. L. Rev. 262 (1975). In Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W.2d 912 (1975), we re-examined the Pfeifer doctrine and almost laid it to rest. See Robert R. Wright, Zoning Law in Arkansas, 3 UALR L.J. 421, 477 (1980). Finally, in City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981), we noted the many cases that “restricted, limited and modified the holding in Pfeifer,” and said the case now has “little if any validity.” Id. at 447-48, 619 S.W.2d at 669-70. In summary, we have returned to the foundational doctrine of Herring v. Stannus, which provides that the judicial department can set aside a legislative enactment only when the legislative branch has abused its discretion in an enactment because of arbitrariness.
C. Standard of Review
1. Presumption of Validity
In reviewing cases involving legislative enactments, such as zoning ordinances, there is a presumption that the legislative branch acted in a reasonable manner, and the burden is on the moving party to prove that the enactment was arbitrary. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), we quoted with approval from Little Rock Railway & Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911), as follows:
It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power.
Id. at 227, 142 S.W. at 166. This presumption is a presumption of law and not merely an inference of fact. See Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).
2. Rational Basis
The chancery court has a limited function in reviewing legislation. It acts not as an ordinary court of equity, but instead acts only to determine whether the legislative action was arbitrary, capricious, and unreasonable. City of Batesville v. Grace, 259 Ark. 493, 594 S.W.2d 224 (1976). We recently defined “arbitrary” and “capricious” in City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994), as follows: Arbitrary is “decisive but unreasoned action,” and capricious is “not guided by steady judgment or purpose.” The definition most easy to apply was given in City of Little Rock v. Breeding, 273 Ark. 437, 445, 619 S.W.2d 664, 668 (1981), when we said that the enactment was not arbitrary if there was any reasonable basis for its enactment.
3. The Bentley case
In appellate review of ordinary equity cases there are two different components of the chancellor’s ruling that are considered. The appellate court will not set aside a chancellor’s finding of fact unless it is clearly erroneous. This deference is granted because of the regard the appellate court has for the chancellor’s opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52. However, a chancellor’s conclusion of law is not entitled to the same deference. If a chancellor erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Manifestly, a chancellor does not have a better opportunity to apply the law than does the appellate court. In an early zoning case, which was actually determined on appeal by a chancellor’s finding of fact, we wrote that the “findings of fact made by the court are abundantly supported by the testimony,” and as a result, we affirmed the ruling by the chancellor. City of Little Rock v. Bentley, 204 Ark. 727, 731, 165 S.W.2d 890, 892 (1942). Unfortunately, through seemingly rote citation, the Bentley statement became the Bentley dogma. As an illustration, in Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W.2d 706 (1966), we wrote:
In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W.2d 116 (1962).
Id. at 156, 406 S.W.2d at 706. The Bentley doctrine was criticized in a 1969 Law Review Article, Morton Gitelman, fudicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969), which, in part, states that under Bentley, the appellate court “does not even mention whether the decisions of both the planning commission and city council are supported by evidence.” Id. at 34.
In 1981, in the case of City of Little Rock v. Breeding, we returned to affirming only the chancellor’s findings of fact under Ark. R. Civ. P. 52, and held that a trial court could not substitute its judgment for that of the legislative branch. Thus, we have retreated from the Bentley dogma, even though we have never expressly overruled it.
4. Correct Standard
In summary, the party alleging that legislation is arbitrary has the burden of proving that there is no rational basis for the legislative act, and regardless of the evidence introduced by the moving party, the legislation is presumed to be valid and is to be upheld if the judicial branch finds a rational basis for it. It is not for the judicial branch to decide from evidence introduced by the moving party whether the legislative branch acted wisely.
II. The Trial Court Proceeding
Appellee offered considerable testimony in the chancery court to show the reasonableness of its request to rezone the five-acre tract. The chancellor apparently was moved by the testimony. The result was that the chancellor’s ruling focused on appellee’s one tract of land, and, consequently, lost sight of the concept that zoning is by districts and not by individual parcels of land. It is not constitutionally appropriate for a court to determine the substantive merits of the city’s refusal to rezone. The fundamental concept of zoning legislation is sound city planning. By focusing on appellee’s one tract, the chancery court unintentionally omitted consideration of the statutory design that allows municipalities to prepare plans, make studies on future development, prepare ordinances, make comprehensive studies, make planning-area maps, design streets, and make various other plans “for the coordinated, adjusted, and harmonious development of the municipality and its environs.” Ark. Code Ann. § 14-56-402 (1987). The sole issue before the chancery court should have been whether there was a rational basis for the city’s refusal to rezone the five acres. After appellee filed its complaint, the city moved to dismiss the complaint on the ground that the “property sought to be rezoned by M & N [appellee] does not qualify under the requested MHP zone because it lacks the necessary frontage on a public street.” At trial, witness LeRoy Barker testified that the five acres “has no frontage on any public street.” Witness Patsie Christie testified that “[t]here is about a one hundred and fifty (150) foot access along the street into the mobile home park, there is no other access to the property which M & N has sought to rezone other than through the other property owned by M & N where the mobile home park currently sits.” Other proof showed that appellees proposed placing seventy mobile homes on the five acres. The zoning ordinance sets out minimum area requirements for both mobile-home parks and individual-dwelling units, as follows:
d. Minimum Area Requirements
1. Land area 43,560 sq. feet (1 acre)
2. Land area per dwelling unit 4,355 sq. feet
3. Front yard setback 25 feet
4. Rear yard setback 25 feet
5. Side yard setback 7 feet (except)
6. Side yard setback from public street 25 feet
7. Frontage on public street 100 feet
The five-acre tract has no street frontage; thus, by itself, it does not qualify for rezoning under the terms of the zoning ordinance. This fact can serve as a rational basis for the refusal to rezone the five acres. M & N might argue that when the five acres is coupled with the two acres, there is sufficient street frontage. One response is that the ordinance does not provide for coupling, but more important, this fact shows that the refusal was fairly debatable, and if it was fairly debatable, it was not “unreasoned” or arbitrary. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).
The planning commission heard considerable testimony from neighbors who opposed the rezoning. The chancellor completely rejected this evidence because “the property appears to be capable of use for the purpose requested and it is in a proper area which is consistent with the City’s plans.” The chancellor’s ruling was as follows:
Mr. Hutchins opposed the rezoning because he lives within three hundred (300) feet of the property and feared that it would decrease the value of the property, be a noise problem and increase the need for police protection and have an impact on the schools. Flossie Clardy expressed that she did not want the mobile homes. Jack Clardy had stated to the Planning Commission that his family owned rental property and started the first mobile home park in the city and that he felt that seventy-five (75) mobile homes on seven (7) acres is too high a density and would impact the police department and schools; and that, he would like to have an ordinance to stop mobile homes in Lowell. Brandi Julian stated to the Planning Commission that the rezoning would decrease the value of their property and increase traffic. Dee Lawson stated that it would depreciate her property and that she did not want the mobile home park opened up. Cathryn Anderson opposed the mobile home agreeing with other statements that had been made. Alta Looby expressed that she wanted no mobile homes. Tom Looby stated that he agreed that he wanted no mobile homes, that the extra traffic problems with seventy (70) mobile homes on an acre would be like a high-rise apartment. James Clardy said he did not favor. Randy Anderson agreed with the comments made by others; and that living in the area, he felt that the mobile home park would be an eye sore. Crystal Christo stated to the Planning Commission that she felt the City should reconsider its current stand on mobile homes, that no more mobile homes should be allowed in Lowell and the existing ones should not be replaced, and that she would like to see an eight (8) foot privacy fence. Carol Wilson stated that she agreed with the statements made, that it would devalue the property and that there should be no more mobile home parks. Robin McDonald expressed that there would be a problem with depreciating property values. Bret Wright stated that he agreed, there should be no additional expansions of mobile home parks. Herbert Johnson owned a duplex on the west side of the mobile home park, but did not live in Lowell, and felt that there should be a buffer zone between the mobile home park and the R1 district. Kendall Morgan, who lives at 314 McClure, had built a privacy fence in cooperation with Mr. Nordsell and stated that the mobile homes depreciate in value and cause all adjacent property to depreciate. Morgan further stated that he found Nordsell to be an honest man, but that he opposed the mobile home park expansion. Merl Atha, whose property adjoins the property on the west, opposed the rezoning also. There were comments by Planning Commissioners McMurray and Hare that have been stated in the testimony about problems with mobile home parks. Based on my review of these comments, there is nothing here for the Planning Commission to base their rejection for the rezoning for, even if they took everything stated to them by those individuals as fact. The property appears to be capable of use for the purpose requested and it is in a proper area, which is consistent with the City’s plans.
The ruling rejecting the evidence was in error. The opinion of local residents, when it reflects logical and reasonable concerns, is an appropriate factor for a planning commission or a city council to consider in zoning cases, and can help form a rational basis for a city’s legislative decisionmaking. Nelson v. City of Selma, 881 F.2d 836 (9th Cir. 1989); Burns v. City of Des Peres, 534 F.2d 103 (8th Cir. 1976); Prince v. County Comm’rs of Franklin County, 769 S.W.2d 833 (Mo. App. 1989); Mira Dev. Corp. v. City of San Diego, 252 Cal. Rptr. 824 (Cal. App. 1988); Ensign Bickford Realty Corp. v. City Council, 137 Cal. Rptr. 304 (Cal. App. 1977); Metee v. County Comm’rs of Howard County, 129 A.2d 136 (Md. App. 1957); and 83 Am. Juf. 2d, Zoning and Planning § 1065. We find no cases to the contrary. However, the mere fact of public opposition to a zoning application will not supply a rational basis for denial of an application. The public opposition must reflect logical and reasonable concerns. If the rule were otherwise, public opinion by itself could justify the denial of constitutional rights and those rights would thus be meaningless. Ross v. City of Yorba Linda, 2 Cal. Rptr. 2d 638 (Cal. App. 1991).
In the case before us, the public opposition to the zoning application reflected logical and reasonable concerns. The public expressed opposition because of increased traffic on limited roads. This concern is reasonable because the only way M & N could comply with the street frontage requirement was by coupling the five acres with the two acres and by using the street frontage located on the two acres for the entire seven acres. The public opposition that was based on noise was reasonable since there would a greater concentration of considerably more mobile homes. The public opposition that was based on a probable decrease of the value of surrounding lands is reasonable and logical. Five nearby landowners testified that the value of their land would decrease if the tract were rezoned. It is well settled that the owner of property, because of his relationship as owner, is competent to give opinion testimony on an issue of the value of his property regardless of his knowledge of property values and it is not necessary to show that the owner is an expert or is acquainted with the market value of local real estate. Such testimony should be stricken only if it has no reasonable basis. Arkansas State Hwy. Comm’n v. Maus, 245 Ark. 357, 432 S.W.2d 478 (1968). Thus, their testimony was competent and the Planning Commission could consider it. In addition, one member of the Planning Commission stated that he moved from a residence solely because it was located next to a mobile-home park, and another commissioner stated that he lived next to a mobile-home park for two and one-half years, and the only disturbances in the neighborhood came from the mobile-home park. In summary, the concerns expressed by the public to the Planning Commission were logical and reasonable, constituted a legitimate factor in the legislative decisionmaking and should not have been disregarded by a court.
This basis, public opposition, was not developed in the trial court, but these cases are not reviewed as ordinary equity cases. They are reviewed only to determine whether the legislative body had a reasonable basis for the enactment. City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976).
In summary, M & N did not meet its burden of proof by showing that there was no rational basis for the city council’s refusal to rezone. Consequently, we hold that the legislative branch acted within its discretion in refusing to rezone the tract, and the chancellor violated the constitutional separation of powers by taking discretion from the legislative branch and placing it in the judicial branch.
Reversed and dismissed.
Jesson, C.J., and Glaze and Corbin, JJ, dissent. | [
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Robert H. Dudley, Justice.
On April 30, 1993, plaintiff Tammy Luedemann was driving her automobile on a rain-slick street in Jonesboro. Her car was the second automobile in a three-car string of vehicles going the same direction. Her car was about three car lengths behind the lead car. The lead car began to slow down, and plaintiff likewise began to slow her car. Defendant Tyson Wade was driving the third vehicle, his pickup truck, about two-and-a-half car lengths behind plaintiff’s car. Defendant testified that he saw the lead car start to slow down, saw plaintiffs brake lights come on, and, as plaintiff’s car was slowing down, it started sliding from side to side or “fishtailing.” Defendant’s pickup struck the rear of plaintiff’s car. Plaintiffs car caromed across the center line and struck two other vehicles. Plaintiff sustained physical injuries, property damage, and loss of wages. She and her husband filed suit against defendant. After a three-day trial the jury found that the accident was 80% fault of defendant and 20% fault of the plaintiff, and awarded $6,025.78 for plaintiffs personal injuries and $7,023.20 for her property damages. Plaintiff filed a motion for a new trial in which she alleged that the verdict for personal injuries was too small and was clearly against the preponderance of the evidence. The trial court denied the motion for a new trial, and plaintiff appeals. We affirm.
Plaintiffs first assignment of error is that the trial court committed error in an evidentiary ruling. The point is well taken, but the error was harmless.
The point came about in the following manner. Plaintiff called defendant as her first witness in her case-in-chief, and he testified, in part, as follows:
Q. It was raining and wet?
A. Yes, sir.
Q. Sir?
A. Yes, sir.
Q. And you were going about 30 or 35 miles per hour?
A. Yes.
Q. Is that right?
A. Yes, sir.
Q. And how far were you behind her car?
A. Two to two-and-a-half car lengths.
Q. Two, two-and-a-half car lengths. At some point did her car start slowing down?
A. It started — her brakes came on and like she was going to start to slow down and her car started swerving — lost control of her car and started swerving off the road.
Plaintiffs second witness was the police officer who investigated the accident. On direct examination, plaintiffs counsel asked the officer about the accident scene. In testifying about those facts, he stated that he arrived on the scene “minutes” after the accident. On cross-examination, defendant’s counsel asked the officer to repeat a statement defendant gave him at the scene about the way the accident occurred. Plaintiff objected to the hearsay statement. The trial court correctly sustained the objection. Rule 801 of the Arkansas Rules of Evidence defines hearsay as a statement made by the declarant while testifying at the trial and offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). The trial court then asked defense counsel if the statement could be qualified as an excited utterance under Ark. R. Evid. 803(2) by establishing the time interval between the accident and the statement and establishing the defendant’s appearance and emotional state. Counsel did not pursue the suggested line of questioning, but rather asked questions about the policeman’s routine in investigating accidents. Counsel then again asked the officer what the defendant told him about the accident and the trial court, over plaintiffs renewed objection, ruled that the officer could answer. The ruling was in error.
The theory of the excited utterance exception is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). For the statement to be an excited utterance, it would have been necessary to establish that the utterance was made soon enough after the accident for it to reasonably be considered a product of the stress of accident, rather than of intervening reflection or deliberation. Id. at 199, 884 S.W.2d at 951 (citing Smith v. State, 303 Ark. 524, 530, 798 S.W.2d 94, 97 (1990)). An excited utterance must have been made before there was time to contrive and misrepresent; that is, it must have been made before reflective and deliberative senses took over. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). The defendant did not establish that he made the statement to the policeman before he had the ability to reflect and deliberate about his statement. Thus, the trial court erred in its ruling. Even so, the error was harmless.
The hearsay testimony of the policeman was as follows:
Q. Please refer to your report.
A. He said basically what I wrote down that Luedemann began skidding and lost control in front of him in response to a vehicle in front of her slowing to turn.
Q. And just to complete it, he was—
A. He was unable to stop, also, and struck Luedemann from behind.
The hearsay testimony given by the policeman about the defendant’s statement was identical to the direct testimony of the defendant. The plaintiff introduced the defendant’s direct testimony in her case-in-chief. Thus, it is difficult to afford meaning to her argument about prejudice since she had already introduced the identical testimony. In addition, two other witnesses, Ronnie Sammons and Bryan Dugger, fully corroborated the testimony. They observed the accident, and their testimony was not hearsay; thus, the hearsay testimony was cumulative evidence. See Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). We have repeatedly held that “an evidentiary error is harmless if the same or similar evidence is otherwise introduced, at the trial.” Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990); Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968). This doctrine is now embodied in Ark. R. Evid. 103(a), which provides that error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected.
Appellant next contends that the trial court erred in deny ing her motion for new trial because the award of damages was too small. Appellant claimed $7,023.30 in property damage, $15,020.19 in medical expenses for personal injury, $523.60 for travel to receive medical treatment, and $12,758.60 in lost wages. She was under treatment from the date of the accident, April 30, 1993, through November of 1994. She testified that site was unable to return to her job at Wal-Mart after October of 1993. She produced exhibits detailing her costs for hospital treatment after the accident, treatment by eight different physicians and two physical therapists, prescription drugs, radiology reports, and various documents and letters from the treating physicians. She contended that her injuries required her to make 109 trips to various medical-care providers.
The jury found that appellee was 80% negligent and appellant was 20% negligent. It awarded damages of $6,025.78 for personal injuries and $7,023.20 for property damages.
Error in the assessment of the amount of recovery, whether too large or too small, is a ground for new trial even in the absence of other trial error. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). An important issue is whether a fair-minded jury could have reasonably fixed the award at the challenged amount. Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989). When the primary issue on a motion for new trial is the alleged inadequacy of the damages and not a question of liability, this court will sustain unless there is a clear and manifest abuse of discretion. Id. This standard is similar to the one followed when the primary issue is liability and the trial judge has granted a new trial. Kempner v. Schulte, 318 Ark. at 435, 885 S.W.2d at 893 (quoting Warner v. Liebhaber, 281 Ark. 16, 661 S.W.2d 399 (1983)). The facts are viewed in a light most advantageous to the appellee. Id. at 436, 885 S.W.2d at 893.
We do not know the exact manner in which the jury arrived at $6,025.78 for personal injuries. However, the jury did find comparative fault of 20%, and such a finding would allow for a deduction in recovery. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985). In addition, the jury could have refused to believe plaintiff’s testimony about her continuing pain and could have concluded that the extended period of. recovery was not necessary. Id. at 262, 691 S.W.2d at 163-64. The jury is not required to accept a party’s testimony as undisputed even when uncontradicted or unimpeached. Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992). It is within the province of the jury to determine credibility and decide whom to believe. Id. Thus, we cannot say that the trial court abused its discretion in denying the motion for a new trial.
Next plaintiff argues that Act 424 of 1993 in effect shifts the burden of proof from plaintiff to defendant when the plaintiff has brought forth evidence of medical expenses, because that act removes the requirement of expert testimony regarding the reasonableness of medical expenses. This argument was not raised in the trial court, and we will not consider an argument raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).
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Robert L. Brown, Justice.
Appellants Jerry Smith and Brenda Smith, his wife, appeal on several bases but primarily from an order dismissing their negligence claim against the appellees Marilyn Hansen and Lynne Rice and from a remittitur order reducing their verdict for compensatory damages against Hansen and Rice from $250,000 to $100,000. Hansen and Rice, as appellees, assert as a cross-appeal the same point urged by the Smiths — that it was error for the trial court to dismiss the Smiths’ negligence claim. In addition, they argue on cross-appeal that the trial court erred in not granting them a new trial and in allowing the outrage claim and the issue of punitive damages to go to the jury. We affirm the trial court’s dismissal of the negligence claim and its rulings on the other matters at issue, but we reverse the order of remittitur.
The facts of this case arise out of an allegation by the Smiths that Hansen and Rice contracted with appellees Jeffery Scott Metcalf and Chris Young to rob and beat the Smiths. According to the testimony at trial, Jerry Smith once worked for Hansen and Rice as a salesman of medical supplies at their business known as Electronic Finders Incorporated (“EFI”) in Little Rock. In order to enhance his income, Smith decided to leave EFI and set up his own medical supply firm called Sources Inc. EFI sued Smith for violation of a non-compete agreement in September 1991, and the case was settled in April 1992.
During the early morning hours of July 3, 1992, Jerry Smith was awakened in his bedroom by a flashlight in his face. He was struck four or five times by the flashlight. He fell out of bed, and the intruder placed the barrel of a pistol behind his right ear and threatened to “blow [Smith’s] head off” if Smith looked at him or tried anything. The intruder accused Smith of sleeping with the intruder’s sister which Smith denied, and he then accused Smith of cheating on Smith’s business partner. He added that the business partner told him to collect $500 from Smith.
The intruder next changed his story and told Smith that the business partner offered him $500 to hurt Smith. He added that he was going to meet Smith’s business partner that day, but Smith knew this to be a lie because his partner was in the hospital for bypass surgery. His wife, Brenda, was grabbed around the neck and hit two or three times. She was threatened with rape and became hysterical. The intruder asked where the guns and jewelry were located, but determined that there were no guns. He apparently decided against taking the jewelry.
A second intruder was present for part of the beating, and he assisted in tying up Smith and his wife. Smith suffers from a degenerative disc disease, and the first intruder said that he knew Smith had a bad back. He then kicked Smith in the small of his back. The first intruder repeatedly asked for more money and eventually took approximately $250 from the Smiths and Jerry Smith’s pickup truck as well. The truck was later recovered in Boyle Park in Little Rock. As a result of the incident, the Smiths have had difficulty sleeping and have sought counseling.
Following the attack, Jerry Smith told investigators from the Little Rock Police Department about Hansen’s and Rice’s dislike for him. After being contacted, Hansen and Rice cooperated with the police and led them to appellees Young and Met-calf. Young and Metcalf were subsequently arrested and prosecuted for robbery. Metcalf pled guilty and received probation. At the ensuing criminal trial for Young, the Smiths and Metcalf testified, as did Hansen and Rice under promise of immunity. The trial court dismissed the charges against Young due to lack of evidence corroborating the testimony of co-conspirators. On appeal by the State, this court declared that the trial court erred in dismissing the charges. See State v. Young, 315 Ark. 656, 869 S.W.2d 691 (1994).
On June 29, 1993, the Smiths filed this lawsuit and alleged assault and battery against Hansen, Rice, Young, and Metcalf. The complaint was later amended to include the tort of outrage and negligence. In their second amended complaint, the Smiths sought a declaratory judgment against appellees Southern Guaranty Insurance Company and Continental Casualty Company, both of which insured Hansen and Rice for acts of negligence related to their business. The declaratory judgment was for the purpose of determining whether the acts complained of comprised negligence. Prior to trial, counsel for Hansen and Rice moved to dismiss the Smiths’ negligence claim, and the trial court granted the motion.
At trial, Scott Metcalf testified that he grew up with Chris Young and that the two men visited the EFI offices on occasion to see Young’s sister, Rosalyn Lemons, who worked for Hansen and Rice. Metcalf stated that Hansen and Rice hired Young and him for $60 each to move their business furniture to a different location. They also hired the two men to follow an employee, Charles George, to determine whether he was doing business with a competitor. Metcalf further testified that Hansen and Rice “wanted something done” to Jerry Smith. He stated that Rice wanted Smith to have his arm or leg broken and that Hansen wanted damage done to Smith’s vehicles by slashing the tires or breaking the windows. Rice, he said, did most of the talking when they discussed the matter. They were told that Smith had a bad back. Metcalf and Young agreed to do what the women wanted for $2,000. Rice then gave them Smith’s address.
Metcalf described to the jury how Young and he broke into the Smith residence through an open window. He stated that Young went through Brenda Smith’s purse and that he tied up the Smiths on Young’s instructions. He added that though he was not present when it happened, it looked like Young had beaten Smith with the flashlight. The two men took Smith’s truck and abandoned it at Boyle Park. A few days later, Young and Metcalf met Hansen and Rice at a Wal-Mart store in Little Rock and received $50, according to Metcalf. A week after that, Young received another $100 from the two women. A meeting was set up at Denny’s restaurant where the two men expected to receive the balance of the $2,000 owed to them. When Hansen and Rice went to supposedly retrieve the money from the trunk of their car, Young and Metcalf were arrested by undercover police. Metcalf stated that he agreed to the contract beating because he was financially strapped, and he denied that there was any misunderstanding about what Hansen and Rice wanted done to Smith.
Rosalyn Lemons testified that she worked for Hansen and Rice for two years as a receptionist and that the two women wanted to get even with Smith for going into competition against them. Lemons testified that she heard Rice say in front of Hansen “just one karate chop to the back would do it.” Lemons also remembered that Rice asked Young whether he would hurt someone for money.
Lynne Rice admitted at trial that she had given Smith’s for mer address to Young but stated that Young told her about the beating and robbery after the fact and then demanded money. Marilyn Hansen told the jury that she did not like Smith and wanted his vehicle damaged, but she denied that she offered anyone payment to do this. She admitted that Smith’s competition was hurting EFI, and that EFI ultimately went bankrupt. She met Young at Wal-Mart after the beating and robbery, saw Smith’s drivers license in Young’s possession, and gave Young $100 to get his car fixed. She testified that she offered the money as a prepayment for help in moving office furniture during the upcoming week. She further testified that she told the two men at the meeting at Wal-Mart that there had been a big misunderstanding. Afterwards, she sought legal advice which resulted in her cooperation with the police.
Chris Young testified that he had previously been convicted of theft of property and theft by receiving and had served time in prison. His probation was revoked because of the Smith beating, but the criminal charges were dismissed against him, as has been already discussed. He stated that Hansen and Rice, who knew he had a record, hired the two men to move their offices and follow Charles George. He further testified that Rice “wanted Smith slowed down physically.” At trial, he denied giving the women a definite price to do the beating and denied actually participating in it. This testimony contradicted his deposition in which he testified that Rice promised him $2,000 for the job. That deposition was used to impeach Young’s testimony at trial. He admitted that he was told that a karate chop to Smith’s back “would be a good idea.”
The jury found that Hansen and Rice through their agents committed battery and outrage against the Smiths and awarded each of them $250,000 in compensatory damages and $500,000 in punitive damages against Rice and against Hansen, for a total award of $3,000,000. The jury further awarded each of the Smiths $25,000 in compensatory damages and $50,000 in punitive damages against Young and $1 in compensatory damages and $1 in punitive damages each against Metcalf. On motion by Hansen and Rice for remittitur, the trial court reduced each compensatory award from $250,000 to $100,000. Following the trial, the trial court also granted summary judgment in favor of Southern Guaranty and Continental Casualty on the basis that the jury found that Hansen and Rice acted intentionally and intentional conduct was expressly excluded from coverage.
The Smiths now appeal and primarily urge that the dismissal of the negligence claim and the order of remittitur were error. We note that Hansen and Rice filed the first notice of appeal and the Smiths filed a notice of cross-appeal, which was timely and appropriate. The Smiths, however, lodged the record and assumed the role of primary appellants while Hansen and Rice filed briefs styled as appellees and then raised new issues as cross-appellants. Though this role reversal is highly unusual, we observe no prejudice to the parties, and we will address the points raised on the merits.
I. Dismissal of the Negligence Claim
The Smiths mount three arguments in their appeal, all of which can be subsumed under the heading of “negligence” because they deal with dismissal of the negligence claim, refusal to instruct the jury on negligence, and summary judgment in favor of the insurance companies. Hansen and Rice successfully moved to dismiss the negligence claim before the trial court, but now also contend that the dismissal was error by the trial court. This, of course, they cannot do. They prevailed below and are bound by the trial court’s decision in their favor. See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994). We will not consider their arguments on this point on appeal.
Appellees Southern Guaranty and Continental Casualty urge that the dismissal of the negligence claim was appropriate because Hansen and Rice owed no legal duty to the Smiths and further that the trial court did not err in granting summary judgment in their favor. The critical factor underlying the parties’ positions is that the insurance policies will cover damages resulting from negligence of Hansen and Rice where that is not the case for intentional torts.
The trial court dismissed the negligence claim but in doing so considered matters outside of the pleadings, including depositions of the parties, which converted the motion into one for summary judgment. See Ark. R. Civ. P. 12(b); First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 900 S.W.2d 202 (1995). With that in mind, we turn to the central issue which is whether Hansen and Rice owed a duty of care to the Smiths. If no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment is appropriate. See First Commercial Trust Co. v. Lorcin, supra.
We have held that ordinarily one is not liable for the acts of another party unless a special relationship exists between the tortfeasor and the victim — in this case, between Hansen and Rice on the one hand and the Smiths on the other. First Commercial Trust Co. v. Lorcin, supra; Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Moreover, in our analysis we further examine whether a special relationship exists between the actor (Hansen and Rice) and the third party (Metcalf and Young) which imposes a duty on the part of the actor to control the third party’s conduct. Id. This is in accordance with the Restatement of Torts which reads:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Restatement (Second) of Torts § 315 (1965).
The Smiths and Hansen and Rice fervently maintain that a claim for negligence is present under these facts. The essence of their argument is that Hansen and Rice negligently proclaimed their desire to see Jerry Smith hurt and his property damaged in the presence of a convicted felon, Chris Young, who took their statements seriously and acted on them. Young, according to the negligence theory, perpetrated the crime against the Smiths with Metcalf’s help, but absent any agreement with Hansen and Rice or clear direction from them to injure Jerry Smith.
We must disagree that a bona fide claim of negligence exists. Clearly, no special relationship existed between Hansen and Rice and the Smiths at the time of the beating. The question then becomes whether a special relationship giving rise to a duty to control existed at that time between Hansen and Rice and the two perpetrators of the crime. We fail to see that it did, excluding as we must the contract to beat Smith for $2,000 from our analysis. That leaves only an agreement between the parties to move furniture and a vague mission to follow an EFI employee named Charles George. There is nothing to suggest that Metcalf and Young were employees, agents, or otherwise subject to the control or guidance of Hansen and Rice.
This is markedly different from the case of Keck v. American Employment Agency, Inc., supra. In Keck, the employment agency sent a customer, Stacey Keck, to interview with a prospective employer, Joiner, who raped her. In that case, we based our decision in part on the degree of control the agency had over Joiner, which could have been exercised by the agency’s making further checks on him. In the instant case, there was no comparable or analogous business relationship between Hansen and Rice and the Smiths which involved Metcalf and Young. We conclude that no such relationship existed among the parties under these facts.
Nor do we view this as a matter where Hansen and Rice induced or encouraged tortious behavior by Metcalf and Young against the Smiths, as we held to be the case in Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W.2d 383 (1975). See also Restatement (Second) Torts § 876 (1979). In Cobb, a security guard for an Indian Springs mobile home park asked a 16-year-old to demonstrate the speed of his car through the park which resulted in injury to a young girl who was hit by the car. We held that a jury question was presented in the case and observed that the security guard was in a position of authority and was held in respect by the young people of the park, which could have influenced and encouraged the teenager to demonstrate the speed of the car. We view that consideration as analogous to the tortfeasor’s having some control over the third party who causes the injury and, again, to be a factor which is absent in the case before us. Nor do we view the testimony of Hansen and Rice, if you eliminate the contract, as constituting an inducement or encouragement to beat the Smiths, or even a suggestion that they do so.
In short, we agree with the trial court that this case presented a cause of action of intentional tort premised on a contract to beat but not a cause of action for negligence. Without the existence of some special relationship, or evidence of encouragement to third parties by one in a position of some control or authority over them, no duty of care flowed from Hansen and Rice to the Smiths. Offhand statements of dislike to a third party cannot constitute negligence in the absence of such a relationship. We hold that the trial court appropriately granted summary judgment on this issue.
II. Outrage
For their second point, the Smiths assert that the trial court erred in refusing to modify the outrage instruction, AMI 404. Specifically, they urge that extreme mental anguish beyond what a reasonable person is expected to endure as set out in AMI 404 is an impossible standard to meet.
The Smiths have no standing to make this argument. The trial court instructed the jury on the tort of outrage using AMI 404, and the jury returned a verdict in favor of the Smiths on this claim. As the prevailing party, the Smiths cannot now contend that AMI 404 should have been given in modified form. See Walker v. Kazi, supra; Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). This point is meritless.
III. Remittitur
We turn next to the Smiths’ argument that the trial court erred in reducing the verdict awards from $250,000 to $100,000. We have held that a trial court may not substitute its judgment for the jury’s when there is a basis in the evidence for the award and when there is no evidence, appropriately objected to, which tends to create passion or prejudice. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). We review the issue of remittitur de novo and determine whether the amount of the judgment shocks the conscience of this court. Id.
In this case, the trial court made no finding that the jury award was the result of passion or prejudice (see Ark. Code Ann. § 16-64-123 (1987)), and we conclude that the compensa tory damages awarded do not shock the conscience of this court. What is at issue here is an assault and battery which took place during the dead of night when the Smiths were in bed in their home. Jerry Smith was roused from his bed, beaten, and threatened with a pistol, and Brenda Smith was threatened with rape and choked. Both Smiths were tied up. The experience was unquestionably and understandably traumatic and cause for considerable mental anguish. Under these facts, we do not find the jury award of $250,000 as compensatory damages for each Smith against Hansen and Rice to be unconscionable. The remittitur order is reversed, and the matter is remanded with directions to reinstate the original verdicts of $250,000.
IV. Cross-Appeal
Hansen and Rice raise several issues in their cross-appeal, none of which has merit. They allege, initially, that the trial court erred in not granting them a new trial based on the excessiveness of the verdict. The standard of review for the denial of a motion for new trial is whether the verdict was supported by substantial evidence. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Metcalfs testimony alone easily constitutes substantial evidence of agency, battery, and virulent conduct on the part of Hansen and Rice. As already discussed, evidence justifying considerable compensatory damages for mental anguish abounds, and the punitive damages do not strike this court as excessive. The trial court did not err in denying the motion.
Hansen and Rice next argue that the trial court was in error in permitting the issue of punitive damages to go to the jury. They particularly disagree with the large discrepancy between the punitive damages assessed against them and the damages assessed against Metcalf and Young. There is no set standard for measuring punitive damages, and the calculation of those damages lies within the discretion of the jury after due consideration of all the attendant circumstances. Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173 (1993). The penalty must be sufficient to deter similar conduct on the part of the same tortfeasor, and it should be sufficient to deter others who engage in similar conduct. Id. The jury is free to consider the extent and the enormity of the wrong, the intent of the parties, and the financial and social standing of the parties. McNair v. McNair, supra.
Hansen and Rice point out that no evidence was presented on their financial condition. They complain that they were prejudiced because, with no evidence in the record, the jury was free to assume that they could afford to pay a sizable punitive judgment, which they cannot. The Smiths respond that no showing of financial condition is required, and they emphasize the varying degrees of culpability to justify the discrepancy in the awards. We note that the outrage claim was directed only at Rice and Hansen, and further that Metcalf was the least culpable in that he did not strike the Smiths. He also testified on their behalf. The trial court did not err in submitting the issue of punitive damages to the jury.
Hansen and Rice further argue that a 1991 U.S. Supreme Court opinion requires a remand in this case on the issue of punitive damages. In Pacific Mut. Life Ins. Co v. Haslip, 499 U.S. 1 (1991), the Court analyzed Alabama’s law on punitive damages and observed that it has more than once approved the common law approach for assessing punitive damages. Haslip, 499 U.S. at 15. However, the Court did allude to the fact that due process considerations may come into play when unlimited jury discretion leads to extreme results in the punitive damages award. With general concerns of reasonableness in mind, the court held that the award in that case did not violate the Due Process Clause of the Fourteenth Amendment.
Our law, as evidenced by AMI 2217, is like Alabama’s and does not provide for unlimited jury discretion. Punitive damages, under AMI 2217, are awarded for deterrence and retribution purposes. AMI 2217 also instructs the jury that the imposition of punitive damages is not mandatory. We find no grounds for a remand on the basis of the Haslip decision. See J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
Finally, Hansen and Rice contend that the trial court erred in permitting the jury to even consider a verdict on the tort of outrage. They submit that there was no evidence to support the finding that their conduct was so outrageous and extreme as to be regarded as atrocious and utterly intolerable. Again, they submit that their conduct was negligent at best. They implore this court to remand the case with the tort of outrage claim removed. We disagree. Substantial evidence was introduced to satisfy the elements of the tort of outrage by means, primarily, of Metcalfs testimony which established a contract beating instigated by Hansen and Rice.
Hansen and Rice further urge that a general verdict amount renders it impossible to know whether the jury award was based on battery or outrage. Because we do not consider submission of the outrage count to the jury to be error, this point presents no basis for reversal. In addition, we have held that the time to object to any irregularity in the verdict form is prior to the discharge of the jury. P.A.M. Transp., Inc. v. Arkansas Blue Cross and Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Hansen and Rice raised no objection to the verdict forms either before or after the verdict was rendered.
Affirmed in part. Reversed in part and remanded.
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David Newbern, Justice.
The issue in this appeal is whether the Arkansas Health Services Agency failed to give proper notice to potential applicants for a permit of approval (POA) to construct a new nursing home in Benton County. The appellee, Rose Care, Inc., appealed from the granting of a permit to the appellant, Regional Care Facilities, Inc., by the Arkansas Health Services Commission. The Trial Court agreed with the contention of Rose Care, Inc., that the POA should not have been granted due to lack of notice. Regional has appealed from that decision. We agree that the Commission failed to follow its announced rules by not providing proper notice to potential POA applicants, thus the decision is affirmed.
The facts are not disputed. In February, 1992, the Agency published notice that a POA would be issued by the Commission for one 70-bed nursing home facility in Benton County. Four applications were submitted in response to the notice. Regional Care Facilities, Inc. (Regional), the appellant, filed two applications, one for a 70-bed unit in Rogers and one for a 70-bed facility in Bentonville. Rose Care applied to build a 70-bed facility in Bentonville. The other application was filed by Innisfree for a 70-bed nursing home in Rogers.
The Agency “in considering the need for only one facility” recommended to the Commission that the POA be awarded to Innisfree. Included in the Agency recommendation, however, was the statement that the Commission “might consider approving a second facility.” The Agency ultimately recommended that a second POA be granted to Regional for the construction of a 70-bed unit in Bentonville.
The Agency then notified the applicants of its recommendations and published notice of a Commission hearing on “Proposals for new 70-bed nursing homes.” At the hearing, each applicant discussed its application. The Rose Care representative voiced concern over the possibility of the approval of a second POA. He expressed surprise at the suggestion of a second POA and referred to the lack of notice concerning the second POA.
The Commission followed the Agency recommendations and awarded one POA to Innisfree for a 70-bed facility in Rogers, and one to Regional for a 70-bed facility in Bentonville. Notice of the decision was sent to the applicants, and Regional and Rose Care appealed to the Commission seeking, in effect, reconsideration of the decision.
At the appeal hearing, Rose Care argued that the Agency did not give proper notice that a second POA would be considered prior to making its recommendations to the Commission. Rose Care also contended the Commission had violated its own rules when it granted the second POA.
Orson Berry, director of the Agency, testified he did not think the notice was mandatory if the Commission found certain extenuating circumstances. He agreed that, to his knowledge, no notice was given to Rose Care of the Agency’s conclusion to suggest approval of a second POA. Mr. Berry also confirmed that the Commission’s notice of the need the Agency had determined spoke in terms of one 70-bed facility.
The Commission denied the appeal, and Rose Care sought judicial review. Regional intervened, taking the position that the Commission’s decision was not improper. Beverly Enterprises— Arkansas, Inc., intervened to object to the Commission’s action. The Trial Court’s ruling included the following:
The Court does not rule on whether the Commission had authority to grant more than one [POA], but simply rules that they could not do so under the procedures which they followed because they did not give adequate notice. The failure to give notice as required by their own rules and by the rights of due process deprived persons who are considered affected persons and who would be interested in whether or not new nursing home permits would be granted of the right to appear before the Commission and submit information and/or objections. For this reason, the Court will reverse the decision and remand it to the Commission to reopen the case and provide the adequate notice as is called for in their own rules and regulations to all affected persons concerning the granting of what has been called in the record the second permit of approval.
Regional contends that adequate notice was given to Rose Care because the Agency’s recommendations were supplied prior to the initial Commission hearing and a notice was published seeking “Proposals for new 70-bed nursing homes.” Rose Care and Beverly respond that the notice was inadequate because it came after the applications were submitted to the Agency and because the original notice contemplated only one new 70-bed facility.
This is not a typical appeal of an exercise of judgment by an administrative agency in which we conduct a limited review of the propriety of an agency’s action to determine if it was arbitrary and capricious. See, e.g., Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). We are, rather, concerned with whether the Commission violated its own announced rules with respect to the decision in question by failure to give proper notice of the intention to recommend to the Commission that two, rather than one, nursing home POAs be granted.
Arkansas Code Annotated § 20-8-106(a) (Repl. 1991) requires that the Commission adopt standards for review of requests for new nursing home facilities on a county-by-county basis. In its regulations, the Commission requires that notice of a proposed review of applications for a POA be given. Although it is not specified, to have any meaning whatever the notice must spell out that for which applications may be submitted. The Agency did that in this case, but then, in effect, changed the notice after the applications had been reviewed by it and its recommendations prepared for the Commission.
The decision of an administrative agency may be reversed “if the substantial rights of the petitioner have been prejudiced because the administrative findings ... are ... made upon unlawful procedure ...” Ark. Code Ann. § 25-15-212(h)(3) (Repl. 1992). See Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). As stated in Panhandle Eastern Pipe Line Co. v. F.E.R.C., 613 F.2d 1120 ( D.C. Cir. 1979), “It has become axiomatic that an agency is bound by its own regulations,” citing Service v. Dulles, 354 U.S. 363 (1957). See also Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407 (1942).
We do not agree with the testimony of the Agency director to the effect that the Agency was not bound by the notice it published to prospective POA applicants. The procedure was “unlawful” because the Agency failed to follow that which it had prescribed. The applicants were prejudiced because they were unprepared to address their prospects for supplying the need for 140 nursing home beds in Benton County as opposed to the 70 stated in the original notice. We agree with the Trial Court’s decision to reverse the Commission and to remand the case so that the process may begin with the issuance of a proper notice.
Affirmed.
Corbin, J., not participating. | [
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Per Curiam.
Willie Burton, Jr., by his attorney, has filed a motion for a rule on the clerk.
His attorney, Marc Honey, admits in his motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the 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).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Donald L. Corbin, Justice.
After a jury trial in the Sebastian County Circuit Court, appellants, Harry G. Robinson, Jr., and his spouse, Miriam Robinson, appeal the judgment in favor of their adult daughter, appellee, Heather Renee Robinson, in her suit against Mr. Robinson for willful, intentional and malicious acts of sexual abuse committed against appellee during her minority, and against Mrs. Robinson for negligence in failing to prevent the abuse. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(16). For the reasons stated below, we reverse the judgment against Mr. Robinson and remand for retrial, and we reverse and dismiss the action against Mrs. Robinson.
Reversal of judgment against Mrs. Robinson
Relying upon Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), appellants timely objected at trial to several instructions guiding the jury in its consideration of appellee’s negligence claim against Mrs. Robinson. The basis for appellants’ objection to the instructions was that, in the absence of willful and wanton conduct by Mrs. Robinson, appellee had no cause of action against her mother. The trial court stated that Mrs. Robinson’s conduct testified to would be willful and wanton and overruled the objection, which appellants now renew on appeal.
In Attwood, this court held that a willful tort committed by a parent against his child was beyond the scope of the parental immunity doctrine, thus the doctrine did not preclude a child from suing his parent for willful and wanton conduct. However, the parental immunity doctrine, as announced in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), does bar an unemancipated minor from maintaining an action for an involuntary tort against her parent. The parental immunity doctrine is based upon the rationale that to permit such a suit would interfere with the parent’s authority over the child, thereby encouraging disobedience and interfering with family harmony. Attwood, 276 Ark. 230, 633 S.W.2d 366. The parental immunity doctrine is the law in this jurisdiction. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). We hold that the doctrine is applicable on the facts of this case where, although appellee had attained her legal age when this action was commenced, she was an unemancipated minor at the time of the alleged tort. Attwood, 276 Ark. 230, 633 S.W.2d 366, n.3 & accompanying text.
Negligence was the sole theory for the liability of Mrs. Robinson that was alleged in the complaint and upon which the jury was instructed. Appellee neither amended her complaint nor proffered any jury instruction as to willful and wanton conduct or any theory of intentional tort as an alternative theory of liability for Mrs. Robinson. Because the jury was not instructed on any theory of intentional tort as a basis for Mrs. Robinson’s liability, we conclude that the jury’s finding of liability was based on a theory of negligence, and, therefore, appellants have demonstrated prejudicial error. Carpenter, 290 Ark. 424, 720 S.W.2d 299; Thomas, 268 Ark. 221, 594 S.W.2d 853. On this point, we reverse the judgment against Mrs. Robinson and dismiss the action against her.
In light of our dismissal of the case against Mrs. Robinson, we address the remaining points of appeal only as regards the judgment against Mr. Robinson.
Reversal of judgment against Mr. Robinson
Mr. Robinson asserts several points of error as regards the form of the judgment, among them that the trial court erred in altering the damages award against him, from the verdict’s award of a sum certain in a ten-year trust, subject to reversion in Mr. Robinson, to the final judgment’s award of the sum certain outright. We agree and reverse the judgment against Mr. Robinson on this point.
The operative facts are as follows. The jury returned a separate verdict against Mr. Robinson that provided, in pertinent part:
We, the Jury, find in favor of Heather Renee Robinson Lineberry against defendant Harry Robinson, Jr., and fix damages at one-half of the $4,335.00 already owed, plus half court costs and attorney’s fees, and Twelve Thousand Five Hundred ($12,500.00) in a trust fund for psychological and psychiatric therapy, which must be used in ten (10) years or the money goes back to Harry Robinson court-appointed trust.
In addition, the jury awarded punitive damages against Mr. Robinson in the amount of $20,000.00. After the verdict was read, the record reflects that the trial court inquired of the jury if it intended that a trust fund be set up for appellee for her psychiatric-type bills, and that the jurors nodded affirmatively.
The trial court’s judgment provided, in pertinent part:
Based upon such Verdicts, the Court finds that it was the manifest intention of the Jury to compensate the Plaintiff for past and future medical expenses, for costs and attorneys fees, and to award punitive damages. The Court further finds, however, that the Jury had no authority to impose a trust upon the future medical expenses and lacked authority to award attorneys fees.
The Court further finds that Plaintiff, Heather Renee Robinson, should have and recover of and from the separate Defendant, Harry G. Robinson, Jr., the sum and amount of $34,667.50.
In addition, the judgment added the amount of $1,000.00 in previously-imposed and unpaid sanctions to the judgment against Mr. Robinson, individually, and awarded costs against both appellants, jointly and severally, in the amount of $977.25.
It is well-established that the jury is the judge of the question of the amount of damages as well as of the question of liability. Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960); Arkansas-Louisiana Gas Co. v. Campbell, 203 Ark. 307, 156 S.W.2d 255 (1941). Nonetheless, in fashioning the judgment, “ ‘the court has the power to put a manifestly irregular or defective verdict in such form as to make it conform to the intention of the jury, and carry their findings into effect, where the intention can be ascertained with certainty.’ ” Trailmobile v. Robinson, 227 Ark. 915, 925, 302 S.W.2d 786, 792 (1957) (quoting, with approval, Vol. 89, Corpus Juris Secundum, 198); accord Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 (1972). The trial court is not authorized, however, to invade the province of the jury by substituting its conclusion as to a material matter. Trailmobile, 227 Ark. 915, 302 S.W.2d 786.
In this case, the jury effectively awarded as little as $0.00 and as much as $25,000.00 for appellee’s future medical expenses by imposing a ten-year trust upon the sum of $25,000.00, subject to Mr. Robinson’s reversionary interest in any trust amount remaining upon trust termination. The jury confirmed its intention in response to the trial court’s inquiry after the verdict was read. The judgment, however, altered the verdict by awarding damages against Mr. Robinson, on an outright basis, in an amount that included the entire $25,000.00 sum. The judgment, therefore, did not conform to the jury’s intention, with any certainty, as regards the amount of the damages award for future medical expenses, and, to that extent, the trial court impermissibly invaded the province of the jury to determine the amount of damages.
On this point, we reverse the judgment against Mr. Robinson and remand for a new trial that will include both damages and liability issues. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993).
We find Mr. Robinson’s other arguments are meritless, but discuss them for the benefit of the trial court to the extent they are likely to arise upon his retrial.
Mr. Robinson argues that the $20,000.00 punitive damages award against him individually was erroneous in the absence of a lawful verdict for compensatory damages. In light of the $4,335.00 award for past medical expenses, based on the testimony of Kathleen Kralik, a psychologist, that appellee had an outstanding unpaid bill in that amount for her services, we find the record does not support Mr. Robinson’s premise for his argument.
Mr. Robinson argues that it was error to admit certain testimony from Eva Rush, director of the Western Arkansas Counselling and Guidance Center, and Ms. Kralik, both of whom were consulted by appellee regarding her alleged sexual abuse. Mr. Robinson filed a motion in limine seeking to exclude opinion testimony from Ms. Kralik and Ms. Rush as to whether appellee was sexually abused, whether appellee was telling the truth, and whether appellee’s statements or conduct were consistent with sexual abuse. The trial court declined to rule on the motion as to Ms. Kralik, but granted the motion as to Ms. Rush.
Because the trial court declined to rule on the motion with respect to Ms. Kralik, it was necessary for Mr. Robinson to make a specific objection during the trial to preserve this argument for appeal. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). The record, however, fails to show that any such objection was made.
With respect to Ms. Rush’s testimony, Mr. Robinson contends that three statements were erroneously admitted. First, on cross-examination, Ms. Rush testified that appellee stated that she felt “she had to get out of there and things were not getting better.” Second, on redirect examination, Ms. Rush testified that her impression of appellee’s aforementioned statement was that appellee wanted to get away from her father, not her home. We find no error. Neither of these challenged statements was within the scope of the trial court’s exclusionary ruling. Further, we observe that the challenged cross-examination testimony was drawn out by Mr. Robinson’s question to the witness, and, that the challenged redirect examination testimony was properly offered to clarify or rebut other cross-examination testimony elicited by Mr. Robinson from the witness that appellee’s “main goal seemed to be getting away from the home.”
The third challenged statement was given in direct examination when Ms. Rush testified that it was not an unusual occurrence in rape crisis for a person to want to withhold her name. Prior to that statement, Ms. Rush had testified that appellee had refused to give her last name when appellee had contacted the Center’s rape crisis service. Admission of the challenged statement may have violated the trial court’s ruling on the motion in limine, but no prejudicial error is demonstrated. Mr. Robinson relies upon our holdings in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), and Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), to illustrate that prejudicial error occurred. We find this authority unpersuasive on the facts of this case. In Johnson, admission of expert testimony on the issue of whether a child’s statements were consistent with sexual abuse was held error, pursuant to Ark. R. Evid. 702, because the jury was able to understand and draw its own conclusions without the aid of an expert; no prejudice was demonstrated due to the child’s explicit testimony of abuse. Here, it is not contended that Rule 702 was violated or that the jury was fully competent to determine whether appellee’s refusal to give her last name to the Center’s rape-crisis service was consistent with sexual abuse; in addition, appellee provided explicit testimony of the alleged abuse. In Russell, admission of expert testimony on the issue of whether child sexual abuse had occurred was held to be prejudicial error where the testimony was based on nothing but the medical history given to the witness by the child. Here, Ms. Rush’s testimony was based on her own personal knowledge of behavior in a rape-crisis center.
For the reasons stated hereinabove, we reverse the trial court’s judgment against both appellees. The case against Miriam Robinson is dismissed. The case against Harry Robinson, Jr. is remanded for a new trial that will include both damages and liability issues.
After she commenced this lawsuit, appellee married Jed Lineberry. | [
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Per Curiam.
The appellant, Donald Bridges, has filed a motion for belated appeal or rule on the clerk. As he filed his notice of appeal prior to the disposition of a post-trial motion listed under Ark. R. App. P. 4(c), it was of no effect. Appellant’s attorney admits he was responsible for the failure to file an additional notice of 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 Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Bradley D. Jesson, Chief Justice.
The appellant, National By-Products, Inc. (“National”), filed a suit for inverse condemnation against the appellee, City of Little Rock, acting through the Little Rock Regional Airport Commission (“Commission”). National owns property near the airport on which it operates an animal by-products rendering plant. In its complaint and amended complaint, National claimed that the Commission’s plans to expand a runway through its property amounted to a “taking” in violation of the Fifth Amendment to the United States Constitution and Ark. Const. art. 2, § 22. National appeals from the trial court’s dismissal of its case for failure to state facts upon which relief could be granted. We affirm.
The facts as set out in National’s complaint and amended complaint are as follows. National operates its plant at 4300 East 9th Street in Little Rock, and also owns an adjacent vacant parcel. Both the plant and the vacant parcel are located between the north end of the airport’s runway and the south bank of the Arkansas River. According to National, its property was identified in a 1985 study as a necessary acquisition for noise mitigation purposes.
In 1991, the Commission acquired substantial property at the north end of Runway 4L-22R as a part of a noise mitigation and runway protection zone. National attached a map to its complaint showing these acquisitions. According to National, its property was the only non-residential improvement in this area. While Federal Aviation Administration (FAA) funds for the project were approved, the grant was not large enough to enable the Commission to acquire National’s property.
The Commission announced its decision to proceed with the acquisition project in August of 1992 and had National’s property appraised. It acquired the residential properties in the area and removed the improvements therefrom. According to National, the effect of these surrounding acquisitions left its property an “island,” as it became the sole property in the immediate vicinity that had not been acquired by the Commission.
According to National, the acquisition of its property remained a high priority for the Commission, as it is practically impossible to extend the runway to the south. The Commission’s pre-application for funds for the acquisition of National’s property remains on file with the FAA. National attached a copy of an official Commission map showing the intended runway extension, which, in addition to mitigating noise, is necessary for reducing current weight restrictions on aircraft, increasing capabilities of non-stop flights, and installing specialized landing and lighting systems.
Between late 1993 and early 1994, the Commission prepared a Capital Improvement Plan for the years 1995 through 1997. The two priority items in the plan were the extension of the runway and the installation of the landing and lighting systems. According to National, the Commission has publicly announced, through the news media, the filing and recording of maps, and the adoption of resolutions, its plans to install the landing and lighting systems in the vicinity of National’s property. As part of this plan, the Commission applied to the FAA for permission to impose a $3.00 per passenger facility charge, the proceeds of which would be used to retire revenue bonds to fund the project. An approved layout plan is on file with the FAA.
According to National, its business is capital intensive and requires frequent maintenance to keep equipment in good working order. National alleges that substantial expenditures, including the purchase and installation of new equipment, would be made at great risk due to the uncertainty as to whether these costs could be recovered in subsequent litigation or by agreement with the Commission.
In 1989, National’s competitors approached National’s suppliers and informed them of newspaper articles about the proposed runway extension. As the suppliers are required by law to dispose of inedible animal by-products promptly, National’s competitors were able to convince a number of National’s customers to change rendering services. According to National, pro spective purchasers of National’s business, once informed of the proposed airport expansion, have immediately lost interest in buying the company. Additionally, National has had extreme difficulty in retaining its management and employees.
In sum, National alleges it has suffered material harm to its operations to the extent that it has been substantially deprived of the use and enjoyment of its property. As a result of the Commission’s actions, which have “effectively frozen [its] operation and have depressed land values,” National claims that its property has been rendered unfit for its highest and best commercial use. National further claims that the Commission’s actions have resulted in permanent and substantial interference and deprivation amounting to an actual or constructive taking in violation of the Fifth Amendment to the United States Constitution and Ark. Const, art, 2, § 22. National has asked for the fair market value of its property from the date the taking was effective. In its original complaint, National claimed that this amount is in excess of the $559,600.00 appraisal figure obtained by the Commission.
The Commission filed a motion to dismiss, asserting that National had failed to assert facts constituting actual trespass or a physical taking under Arkansas law, and that National had made no showing of total diminution in the value of its property. National filed a response to the motion, claiming that it need only demonstrate that the Commission acted in a manner that substantially diminished the value of its property. The trial court heard arguments from counsel at a hearing on the motion, but no evidence or witness testimony was presented. At the conclusion of the hearing, the trial court ruled that the adverse impact on the commercial use of National’s property appeared to be caused by its competitors rather than the direct result of the Commission’s actions. In determining that National’s complaint did not state a cause of action, the trial court further observed that the law in Arkansas on inverse condemnation has historically involved some type of invasion or trespass where governmental activities interfere substantially with the quiet enjoyment of the subject property or diminish its commercial use. The trial court subsequently entered a judgment of dismissal pursuant to Ark. R. Civ. P. 12(b)(6), from which National takes this appeal.
When reviewing an order granting a motion to dismiss to determine whether dismissal was proper, we treat the allegations in the pleading as true and view those allegations in a light most favorable to the appellant. Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1 (1995).
Article 2, section 22 of the Arkansas Constitution provides that “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” We have interpreted this provision to require compensation for a taking when a municipality acts in a manner which substantially diminishes the value of a landowner’s land, and its actions are shown to be intentional. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). A conspectus of the law on inverse condemnation is as follows:
As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, 8.1 [4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.
301 Ark. 226 at 230. In Robinson, we stated that a taking occurs when a condemnor acts in a manner which substantially diminishes the value of a landowner’s land, and that a continuing trespass or nuisance could ripen into inverse condemnation. Later, in City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991), while we did not provide a definitive statement of what constitutes a taking, we emphasized that a taking does not require permanency nor an irrevocable injury. 305 Ark. 210 at 214-215; citing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
At least one commentator has characterized the issue presented in this case as one involving “condemnation blight,” which is defined as “the debilitating effect upon value of a threatened, imminent or potential condemnation.” 4 J. Sackman, Nichols on Eminent Domain, § 12B.17[6] (Rev. 3d ed. 1995). The following discussion is illustrative:
The question has arisen with more and more frequency, usually in the format of an action in inverse condemnation: Absent a “taking” in the legal and traditional sense, does “condemnation blight” give rise to a cause of action for the recovery of the diminution in property value, lost rental income and increased and unrequited costs of maintenance of protection of property? Several jurisdictions require a physical taking or legal restraint as a sine qua non to a sustainable cause of action. Other jurisdictions, recognizing the economic impact, have equated condemnation blight with a de facto taking. However, it has been held that damages for loss of business and depreciation of property resulting from the condemnation of adjacent land are noncompensable where there is no interference with possession, use, or enjoyment of such land.
Id. at 12B-256-258 [footnotes omitted].
In Danforth v. United States, 308 U.S. 271 (1939), a landowner contended that the “taking” of his property had occurred prior to the institution of condemnation proceedings, by reason of the enactment of the Flood Control Act. He claimed that the passage of the Act had diminished the value of his property because the plan embodied in the Act required condemnation of a flowage easement across his property. The United States Supreme Court held that, in the context of condemnation proceedings, a taking does not occur until compensation is determined and paid:
A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.
482 U.S. 271 at 285. See also Agins v. City of Tiburon, 447 U.S. 255 (1980)(a municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, did not so burden landowners’ enjoyment of their property as to constitute a taking).
We followed the rationale of the Danforth decision in Hood v. Chadick, County Judge, 272 Ark. 444, 615 S.W.2d 357 (1981); see also 4 J. Sachman, Nichols on Eminent Domain § 12B.17[6] (Rev. 3d ed. 1995). In that case, Hood appealed from the trial court’s dismissal of his case against Jefferson County for damages he alleged were caused by the county’s threat to take his property. Hood owned a building registered as a historical landmark located across the street from the Jefferson County Courthouse. After the courthouse burned in 1976, a commission was appointed to discuss plans for rebuilding. The commission’s members considered plans to take Hood’s property for parking and landscaping. The original plan, approved by the City Council in 1978, was withdrawn from a November 1978 election. A subsequent plan was developed and referred to the people in a July 1979 election. The plan was defeated. Subsequently, the county dismissed its condemnation suit against Hood, which had been filed in response to Hood’s suit to enjoin the county judge from taking his property and for damages for loss of rentals. In affirming the trial court’s dismissal of Hood’s case, we observed that the county never took possession or even entered upon Hood’s property and concluded that “[n]o damages are allowable for a mere ‘threat to condemn.’ ” Id. at 447; see also Watson v. Harris, 214 Ark. 349, 216 S.W.2d 784 (1949); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955)(holding that the actual taking or damage of lands for public use is what must be compensated under the state and federal constitutions, not a plan to take or damage the land).
Our holding in Hood is consistent with the law in several jurisdictions which adhere to the general rule that mere plotting or planning in anticipation of an improvement does not constitute a taking or damaging of the property affected where the government has not imposed a restraint on the use of the property. See e.g., Westgate Ltd. v. State, 843 S.W.2d 448 (Tex. 1992) and Lone Star Ind. v. Sec. of Kan. Dept. of Transp., 671 P.2d 511 (Kan. 1983) (citing with approval Hood v. Chadick, supra); see also J.R. Kemper, Annotation, Plotting or Planning in Anticipation of Improvement as Taking or Damaging of Property Affected, 37 A.L.R.3d 127 (1971 and Supp. 1995).
As outlined in Westgate, Ltd. v. State, supra, public policy considerations support our continued adherence to the general rule:
Construction of public-works projects would be severely impeded if the government could incur inverse condemnation liability merely by announcing plans to condemn property in the future. Such a rule would encourage the government to maintain the secrecy of proposed projects as long as possible, hindering public debate and increasing waste and inefficiency. After announcing a project, the government would be under pressure to acquire the needed property as quickly as possible to avoid or minimize liability. This likewise would limit public input, and forestall any meaningful review of the project’s environmental consequences. The government would also be reluctant to publicly suggest alternative locations, for fear that it might incur inverse condemnation liability to multiple landowners arising out of a single proposed project. Failing to consider available alternatives is not only inefficient, but is at odds with proper environmental review.
843 S.W.2d 448 at 453 (citations omitted). As we recognized in Hood, these policy reasons might not be applicable where a condemning authority is accused of intentionally injuring a landowner. However, as conceded by counsel for National during oral argument, the Commission, through its actions, did not manifest such an intent to cause injury.
In this case, the property in question continued to be used for its traditional purpose as a rendering plant. Neither the City nor the Commission has placed any direct restraint on that use. Likewise, there is no allegation that the City or the Commission acted in bad faith in its dealings with the landowner. It is clear that, on the facts before us, any damages sustained by National were insufficient to support an action for inverse condemnation. When viewing the allegations in the amended complaint in a light most favorable to National, it cannot be said that the Commission’s actions constituted a taking of National’s property.
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David Newbern, Justice.
Anthony Cole was convicted of first-degree murder and sentenced to 37 years imprisonment. He contends the evidence showed conclusively that Germaine Brown, who testified against him, was an accomplice as a matter of law and the other evidence was insufficient to corroborate Germaine Brown’s testimony. We conclude the Trial Court properly instructed the jury to determine whether Germaine Brown was an accomplice. Mr. Cole also argues certain hearsay evidence was improperly admitted. We find no error and affirm.
Ronald Brown was shot and killed as he stood on the porch of a residence in Little Rock. Anthony Cole and Arlantus White were charged with capital murder. At Cole’s trial, the State proceeded on a theory that Mr. White was the “trigger man” in the crime, and Mr. Cole was his accomplice.
1. Accomplice determination
Germaine Brown was with a group of men, including Cole and White, on the night of the shooting. Germaine Brown testified Cole wanted to “get” Ronald Brown. The group followed the victim until he went into a residence. They waited outside.
At one point Mr. Cole approached the residence. Two women who were present inside with the victim said Cole warned them what was to happen. After he returned to the group outside, Cole told Germaine Brown to go into the residence to get Ronald Brown to come out. Germaine Brown said he at first refused, but did as he was told after White insisted while holding a gun. Ronald Brown came out onto a porch where White shot him. Germaine Brown said he refused to go up to the porch with the others as he wanted nothing to do with the shooting. He did not see the shooting directly, but knew what was happening because he could see shadows of the participants around the corner of a building. All of the men who had been in the group, including Germaine Brown, then ran away.
The defendant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces the other person to commit it, or aids, agrees to aid or attempts to aid the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Ark. Code Ann. § 5-2-403 (1987); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). Mere presence at the scene of the crime does not make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).
Germaine Brown testified that when the police arrived to investigate the incident, he remained silent because he felt threatened by White and Cole. He went to the police the next day to report the crime.
The testimony of other witnesses indicated the extent of Germaine Brown’s involvement in the murder and his fear of Cole and White. Tonya Rogers testified that Germaine Brown did not want to talk to the police at first because “he was scared for his life.” Diane Delph, who was in the apartment when Germaine Brown entered to speak to Ronald Brown, testified that Germaine Brown said that “Boo (Mr. Cole) and them say get that boy named Ron out the house, or else they’re going to shoot up in there.” Paul Humphrey, who took Germaine Brown to the police station, testified that after the murder, Germaine Brown seemed “upset and scared.”
The Trial Court did not err by refusing to declare Germaine Brown an accomplice as a matter of law. The evidence was such that it was appropriate for the jury to decide whether his participation was under duress, see Ark. Code Ann. § 5-2-208 (Repl. 1993), and thus that it was not his purpose to aid in the commission of the crime.
2. Hearsay
Germaine Brown’s testimony included the following:
PROSECUTOR: After y’all stopped running, do you recall Arlantus White and the Defendant, Anthony Cole, having a conversation?
MR. BROWN: Yes, sir.
PROSECUTOR: What was that conversation?
MR. BROWN: Well, Arlantus said, “I told y’all I was going to kill him.”
[Objection from Defense Counsel]
PROSECUTOR: And what did Anthony Cole, Boo, say when Arlantus White said “I told you I was going to kill him?”
MR. BROWN: You done a good deed.
Counsel objected to this line of questioning on the basis that the statement made by Mr. White, “I told y’all I was going to kill him,” was hearsay. The State responded that the statement was not hearsay because it was made by a co-defendant in the furtherance of a conspiracy. The Trial Court overruled Mr. Cole’s objection. Mr. Cole argues that the Trial Court erred when he allowed Mr. Brown to testify that Mr. White had said, “I told y’all I was going to kill him.”
As the statement in question allegedly was uttered after the murder occurred it was not “in furtherance” of a crime. See Brazel v. State, 296 Ark. 563, 759 S.W.2d 563 (1988). The State, citing Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987), and Russell v. State, 18 Ark. App. 45, 709 S.W.2d 825 (1986), now argues the statement was admissible to provide a context for Mr. Cole’s statement, “You done a good deed,” which is an admission by a party-opponent.
Arkansas R. E. 801(c) defines “hearsay” as a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. In this case, Mr. White’s statement was not hearsay because it was not offered for the truth of the matter asserted.
Some Out-of-Court Utterances Which Are Not Hearsay.
. . . Utterances and writing offered to show effect on hearer or reader. When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as being put on notice or having knowledge, or motive, or to show the information which X had as bearing on the reasonableness or good faith or voluntariness of the subsequent conduct of X, or anxiety, the evidence is not subject to attack as hearsay. . . .
McCormick on Evidence, § 249, pp. 733-34 (3d Ed. 1984).
The statement was admissible because it tended to show the effect on the listener, i.e., instigating Mr. Cole’s immediate response showing his approval of the shooting and tending to prove Mr. Cole’s status as an accomplice.
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Donald L. Corbin, Justice.
On direct appeal, this court affirmed the convictions in the Washington County Circuit Court of appellant, Everett L. King, for possession of a controlled substance with intent to deliver and delivery of a controlled substance. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). Appellant now appeals the trial court’s order entered on August 10, 1994 denying his petition for post-conviction relief filed pursuant to A.R.Cr.P. Rule 37. Jurisdiction of this case is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(5).
At the commencement of the hearing on the petition, appellant requested that Joel Huggins, appellant’s former trial counsel who was present at the hearing simply as a witness, be excused from the courtroom in accordance with A.R.E. Rule 615. Huggins’s representation of appellant at trial on the drug charges was the subject of the numerous ineffective assistance of counsel claims raised in the Rule 37 petition. The trial court, however, permitted Huggins to remain in the courtroom on the ground that he “might be considered a party[.]” Appellant then took the stand as the .first witness and was followed on the witness stand, in order, by Rebecca Anderson, Larry Walker, Huggins and Dana Watson; Huggins was then recalled as the final witness. Each witness presented testimony relevant to appellant’s ineffective assistance of counsel claims.
Appellant argues the trial court erred in refusing to exclude Huggins from the courtroom and asks this court to grant him a new Rule 37 hearing. Rule 615 provides as follows:
Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Rule 615 uses the word “shall” and, as this court has stated, it must be construed to be mandatory. Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). Huggins did not become a party to the action by virtue of his status as appellant’s former trial counsel. Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984); Chambers, 264 Ark. 279, 571 S.W.2d 79. No argument is pre sented and the record does not reflect that Huggins was qualified to remain in the courtroom pursuant to either of the other exceptions enumerated in Rule 615. Therefore the trial court’s ruling was erroneous and Huggins should have been excluded. Maddox, 283 Ark. 321, 675 S.W.2d 832; Chambers, 264 Ark. 279, 571 S.W.2d 79.
The state argues that appellant is procedurally barred from raising this issue by his failure to raise an objection before the trial court to its refusal to exclude Huggins. We are not persuaded by this argument. Appellant’s invocation of his mandatory right to exclude Huggins pursuant to Rule 615 sufficed to bring this issue to the attention of the trial court.
In the Chambers and Maddox decisions, this court specifically ruled upon identical procedural errors under Rule 615, then proceeded to reach differing dispositions of those cases after addressing each appellant’s Rule 37 ineffective assistance of counsel claims. In Chambers, where we held the petitioner proved ineffective assistance of counsel, we reversed the denial of the Rule 37 petition and remanded the case for further proceedings. Six years later, in Maddox, where we held the ineffective assistance of counsel claim was neither proved nor a proper Rule 37 issue, we affirmed the denial of the petition.
In Maddox, we cited Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982), cert. denied, 472 U.S. 1019 (1985), for the proposition that we have generally held such erroneous procedure goes only to the witness’s credibility. After reviewing Allen and the cases cited therein, we observe today that, with one exception, the sequestration issue in each case arose when a witness violated Rule 615 after having been excluded by the trial court; in the exceptional case referred to, the trial court refused to exclude the proffered witness or to permit his testimony. Allen and the cases cited therein, therefore, are factually distinguishable from the present case in which the trial court itself violated Rule 615, ab initio, by denying appellant’s mandatory right to exclude Huggins and by permitting Huggins to testify.
The purpose of Rule 615, which is the same as the federal rule, can best be learned by studying the recommendations made to Congress. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). The Original Advisory Committee’s Note on Rule 615 provided in pertinent part as follows: “The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. 6 Wigmore §§ 1837-1838.” 3 Jack B. Weinstein et al., Weinstein’s Evidence 615-3 (1995). Said another way, Rule 615 is employed to expose inconsistencies in the testimonies of different witnesses and “to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.” Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 215, 682 S.W.2d 457, 458 (1985). This court has held that Rule 615 is considered as effective as cross-examination in serving the court to garner the truth and should not be easily circumvented. Gustafson, 267 Ark. 278, 590 S.W.2d 853.
The present case particularly illustrates the need for Rule 615. Prior to taking the stand initially, Huggins heard the testimonies of appellant, Anderson and Walker, the three witnesses who preceded him. Prior to taking the stand as a recalled witness, Huggins heard the testimony of Watson, the only witness who was called after Huggins’s initial testimony was given.
Among his numerous allegations of ineffective assistance, appellant alleged Huggins was ineffective for failing to call Walker as a trial witness. At the hearing, Walker testified that he was at appellant’s residence on the day of appellant’s arrest on the drug charges, and saw the police informant purchase drugs from another person and not from appellant. Walker testified he was interviewed by Huggins prior to appellant’s trial, was present at the trial and ready to testify, but was told by Huggins that he would not be needed.
Huggins then took the stand at the hearing and testified that Walker’s testimony was different from the statement Walker had given Huggins in their pretrial interview. Huggins testified that Walker’s pretrial statement was that he saw the police informant and appellant go into another room in appellant’s residence, where they had remained for a short time. Huggins testified Walker’s pretrial statement was consistent with the prosecution’s evidence of the drug sale. Huggins testified he chose not to call Walker because he felt Walker’s testimony would be damaging and because Huggins’s trial strategy, in part, was to argue that Walker was present at appellant’s residence and could have participated in the drug sale, without calling Walker to the stand where Walker could deny participation. Huggins testified he would have called Walker to testify if Walker’s pretrial statement had been consistent with Walker’s testimony at the hearing.
No other evidence was introduced at the hearing with respect to the ineffective assistance claim concerning Walker. In its order denying the Rule 37 petition, the trial court held Walker’s testimony presented no evidence that could have assisted appellant in his defense at trial, and ruled Huggins was not ineffective for failing to call Walker.
To the extent the trial court based its denial of the Rule 37 petition upon conflicting testimonies presented by Huggins viz. the other witnesses at the hearing, appellant has demonstrated prejudice as a result of the trial court’s Rule 615 error. Appellant’s request for a new Rule 37 hearing is granted. In light of the taint cast upon the evidence presented at the hearing, we do not address appellant’s remaining arguments regarding the trial court’s rulings on his ineffective assistance of counsel claims for reversal of his convictions.
In Maddox, we stated that, as a practical matter, a rehearing would be a useless gesture, and therefore held the trial court’s Rule 615 error was not prejudicial under the particular circumstances of that case. In so ruling, we did not address the nature of the testimony, if any, given by Maddox’s former trial counsel at the Rule 37 hearing or its effect upon the trial court’s decision. To the extent it conflicts with our decision today, Maddox is overruled.
The order denying the petition is reversed and the case remanded for further proceedings in accordance with this opinion.
Glaze, J., dissents. | [
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Andree Layton Roaf, Justice.
This appeal arises from a chancellor’s order finding that appellants had violated a restrictive covenant which prohibited use of their property for other than residential purposes, and requiring that appellants remove a shop building they constructed on the property. Appellants assert the chancellor erred in 1) interpreting the restrictive covenant to apply to the building erected by appellants and; 2) granting injunctive relief which required that appellants remove the building. We find no error and affirm.
Appellants Terry and Sandra Holaday purchased a lot with a house and two car garage in the Willow Oak Place subdivision in Rogers, Arkansas. A protective covenant and- a bill of assurances encumbered the lot, and provided that “all lots in Willow Oak Place subdivision shall be used exclusively for residential purposes.” The bill of assurances, which was adopted by all homeowners in the subdivision in 1988, also stated that “no structure of a temporary character, trailer, basement, tent shack, barn, or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.” The warranty deed to the property in question also contained the requirement that “all lots in FRAKER SUB-DIVISION #1 shall be used exclusively for residential purposes.” The warranty deed further provided that “no dwelling shall be erected ... in said subdivision other than a detached, single family dwelling, not to exceed two and one-half stories in height and a one, two or three car garage.” This subdivision was initially created by appellee Roberta Fraker. Appellants purchased the lot in question by warranty in 1989, and were fully aware of the protective covenant and bill of assurances.
In April, 1993, appellants constructed a blue metal shop building approximately thirty (30) feet by fifty (50) feet with fourteen (14) foot high walls on the property. Appellants claim to have gotten permission from appellee Fraker before building the shop. On September 19, 1994, appellee Fraker filed a complaint in chancery court alleging that appellants had violated the bill of assurances and protective covenants of the subdivision. Fraker subsequently filed an amended complaint adding other appellees, who also are residents of the Willow Oak Subdivision, further alleging that appellants undertook to perform commercial automobile repairs in the outbuilding and also boat repairs, both for compensation.
Appellants filed a counterclaim against appellee Fraker alleging appellants had contacted Fraker to seek assurances that the proposed outbuilding would not violate the bill of assurances and protective covenants. Appellants alleged that during their conversation with Fraker the appellants disclosed to Fraker the type, size and location of the shop building, and that appellee Fraker represented to appellants that this type of building would not be in violation of the restrictive covenants. Appellants further made estoppel, false representation, and negligence arguments for recovery against Fraker. The lower court dismissed appellants’ action against Fraker pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure.
The appellees’ cause of action was tried on May 3, 1995. The Chancellor found that appellants had violated the restrictive covenant by erecting a building of the size suitable for commercial purposes. The court further ordered appellants to remove the building from their property within six months. An order for stay of judgment was granted to allow appellants to appeal the lower court’s decision.
Appellants first argue that they have not violated any of the restrictions contained in the covenant, bill of assurances, or warranty deed. Although we try chancery cases de novo on the record, we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). Deference is given to the superior position of the chancellor to judge the credibility of witnesses. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In order to overturn the chancellor’s ruling, the appellants must demonstrate that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993). We cannot say that the trial court’s determination was completely erroneous in this instance.
Appellants correctly state that courts do not favor restrictions upon the use of land, and if there is a restriction on the land, it must be clearly apparent. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). Appellants rely heavily on Casebeer v. Beacon Realty, 248 Ark. 22, 449 S.W.2d 701 (1970), for the proposition that restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. Appellants assert that any doubts are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in the use of land. Casebeer at 25.
However, in later cases, we have stated that the general rule governing the interpretation, application and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. McGuire at 289. The rule of strict construction limited by the basic doctrine of taking the plain meaning of language employed. Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971). In Hays, we recognized the doctrine of strict construction stating “. . . . where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint should be decreed; . . . when the language of the restrictive covenant is clear and unambiguous the parties will be confined to the meaning of the language employed; and it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction.” However, we further stated “. . . but such strict rules of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction.” Hays.
Moreover, we stated in McGuire that where no general plan of development exists, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. McGuire at 290. The test of whether such a plan exists is whether substantial common restrictions apply to all lots of similar character or similarly situated. Id. Here, of course, a general plan or scheme of development exists because all homeowners in the subdivision adopted the bill of assurances and restrictive covenant in 1988. Further, appellants were fully aware of the provisions contained in their warranty deed and restrictive covenant when they purchased the lot. One taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984).
Appellants’ warranty deed and bill of assurances clearly state that all lots shall be used exclusively for residential purposes. However, appellants contend that since the bill of assurances states that no dwelling shall be erected on any lot other than a single-family dwelling with no more than a three car garage and also no outbuilding shall be used on any lot at any time as a residence, the restrictive covenants do not specifically exclude their blue metal shop building because it is not a dwell ing, nor is it used as a residence. We agree that appellants’ building is not a dwelling, the definition being a place to live in, The American Heritage Dictionary, 431 (2d ed. 1976), nor is the building being used as a residence. However, the trial court’s determination was based on whether appellants’ lot was being used exclusively for residential purposes.
The trial court specifically found that appellants violated the covenant by placing on their lot a bright blue metal shop building suited for commercial purposes. Appellant Terry Holaday admitted to bringing automobiles and boats of others to the shop building, and repairing them for compensation. Appellees testified that appellant regularly brought cars to the shop to fix and that the appearance of the shop building caused the value of their property to decrease.
The Arkansas Court of Appeals stated in Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984):
There is no ambiguity in the expression ‘No lot shall be used for other than residential purposes.’ Any additional use must be reasonably incidental to residential uses and such an inconsequential breach of the covenant as to be in substantial harmony with the purposes of the parties in making the covenants, and without substantial injury to the neighborhood.
Citing Thompson v. Squibb, 183 So.2d 30 (Fla. D.C. App.2d 1966).
In this instance, the lower court made a determination that appellants’ building constituted a violation of the provision that all lots be utilized exclusively for residential purposes. The chancellor’s determination will not be reversed by this court unless it is clearly erroneous. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). Although there is ambiguity in the language of the covenant, the plain and obvious purpose of the restriction is clear, that the lots be used exclusively for residential purposes. From our review of the evidence, we cannot say that the lower court’s determination was clearly erroneous.
Appellants also contend that the trial court clearly abused its discretion to grant injunctive relief by ordering appellants to remove the shop building because the court concluded the building was suited for commercial purposes. Appellants suggest that a more equitable and appropriate remedy would be to restrict their use of the structure. We do not reach appellant’s second point on appeal because it does not appear to have been presented to the trial court. We have consistently held that we will not consider an issue for the first time on appeal. Hercules Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).
Affirmed.
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Bradley D. Jesson, Chief Justice.
On June 21, 1993, the appellant, Damien Echols, and Charles Jason Baldwin were charged with the murders of three West Memphis boys. Steven Branch, Christopher Byers, and Michael Moore, all eight years of age, had been missing since the early evening hours of May 5, 1993. Their bodies were found the next day submerged in a creek in a park-like area of West Memphis known as Robin Hood. The boys’ bodies were nude, their hands and feet had been tied, and it was evident they had been severely beaten and mutilated.
The West Memphis Police began an extensive investigation. On June 3, 1993, they questioned the appellant regarding any knowledge he might have about the murders. In the course of the interrogation, he made statements in which he implicated himself, Baldwin, and Echols. All three were arrested and charged with capital murder.
The appellant was tried separately from Baldwin and Echols. The jury convicted him of first-degree murder in the death of Michael Moore, for which he received a life sentence, and second-degree murder in the deaths of Steven Branch and Christopher Byers, for which he received a combined sentence of 40 years. It is from these convictions that he appeals. He raises numerous and varied points for reversal. After thorough consideration of each issue, we find no error and affirm the convictions.
Sufficiency of the Evidence
It is our general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The appellant’s argument is directed solely to his first-degree murder conviction.
At the close of the state’s case, and again at the close of all evidence, the appellant moved for a directed verdict. He claimed that the state failed to prove he had acted with the purpose of causing the deaths of the three boys, or that he had acted as an accomplice to the commission of a homicidal act. The trial court denied the motion.
A directed verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury’s verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
The Moore, Byers, and Branch boys were last seen at approximately 6:00 p.m. on May 5, 1993. At least two of the boys were riding their bicycles. Their parents reported them missing at about 8:00 p.m. Police and area residents conducted a search later that evening, but the boys were not found. The search continued on May 6. The boys’ bodies were discovered about 1:15 that afternoon.
On June 3, 1993, the crime having remained unsolved, Detective Sergeant Mike Allen sought the appellant out for questioning. The appellant was not considered a suspect, but it was thought he might have knowledge about Damien Echols, who was a suspect. Detective Allen located the appellant and brought him back to the station, arriving at approximately 10:00 a.m. Later in this opinion, we will address in detail the circumstances surrounding the appellant’s interrogation. For now, it is sufficient to say that the appellant was questioned off and on over a period from 10:00 a.m. until 2:30 p.m. At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape-recorded.
The statements were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.
The statements were obtained in a question-and-answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity the appellant’s description of the crime:
In the early morning hours of May 5, 1993, the appellant received a phone call from Jason Baldwin. Baldwin asked the appellant to accompany him and Damien Echols to the Robin Hood area. The appellant agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to appellant, he was merely an observer.
While these events were taking place, Michael Moore tried to escape and began running. The appellant chased him down and returned him to Baldwin and Echols. The appellant also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up.
According to the appellant, he ran away from the scene at some point after the 'boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after the appellant arrived home, Baldwin called saying, “we done it” and “what are we going to do if somebody saw us.” Echols could be heard in the background.
The appellant was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys.
The appellant was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt.
The appellant initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day.
The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, the appellant said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope.
One of the interrogating officers later testified that his notes revealed the appellant told him he received a phone call from Baldwin on the night before the murders. Baldwin stated that they planned to go out and get some boys and hurt them.
The appellant’s statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5. However, there were portions of the statements which were consistent with the evidence and were corroborated by the state’s testimony and exhibits. The victims had been seen riding their bicycles. The medical examiner testified that the boys had been severely beaten. Two of them had injuries consistent with being hit by a large object. One of the boys had facial lacerations. The Byers boy had indeed been severely mutilated in the genital area. All the boys had injuries which were consistent with rape and forced oral sex. There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy. This is consistent with the appellant’s statement that the Byers boy was already dead when he left the scene. The boys were in fact tied up, albeit with shoe laces rather than rope. Damien Echols was observed near the crime scene at 9:30 p.m. on May 5. He was wearing black pants and a black shirt and his clothes were muddy. A witness testified that she had attended a satanic cult meeting with Echols and the appellant. Steven Byers’s mother testified that, approxi mately two months before the murders, her son told her that a man dressed all in black had taken his picture. There was evidence that Baldwin owned a shirt and boots of the type described by the appellant. Finally, a witness from the State Crime Lab testified that she found fibers on the victims’ clothing which were microscopically similar to items in the Baldwin and Echols residences.
The appellant does not argue that the inconsistencies in his statements render them insufficient. Indeed, when inconsistencies appear in the evidence, we defer to the jury’s determination of credibility. A jury is free to believe part of the evidence before it and reject other parts. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). However, the gravamen of this issue is whether the evidence contained in the statements supports a verdict of first-degree murder.
The appellant argues that he did not possess the requisite state of mind for the crime. The jury was instructed that they could find the appellant guilty of first-degree murder if they found he acted with the purpose of causing the death of one of the victims. This is consistent with the language of Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). The jury was also instructed on accomplice liability as follows:
In this case, the state does not contend that Jessie Lloyd Misskelley, Junior acted alone in the commission of the offense of three counts of capital murder. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who directly participates in the commission of an offense or who with the purpose of promoting or facilitating the commission of an offense agrees to aid, aids, or attempts to aid the other person or persons in the planning or committing the offense.
This instruction is consistent with AMCI 401 and Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1993).
A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1993). In cases of murder, a defendant’s intent is seldom capable of proof by direct evidence. It must usually be inferred from the circumstances of the killing. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995).
A defendant may be found guilty not only of his own conduct, but also the conduct of his accomplice. When two or more persons assist one another in the commission of a crime, all are accomplices and criminally liable for each other’s conduct. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Id. Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (supplying intoxicant to one who later commits manslaughter does not support accomplice liability for manslaughter). However, where the state establishes evidence that the accused purposefully aided in the commission of the crime, a conviction for first-degree murder based on accomplice liability will be upheld. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).
The jury’s decision to convict the appellant of a greater offense in the death of Michael Moore indicates that much importance was placed on the appellant’s chasing down the boy and returning him to the scene where brutal beatings and sexual assaults were taking place. Such an act is highly suggestive of joint participation in the crime. There was also evidence that the appellant knew the night before the murders that Baldwin and Echols were going to “get some boys” and hurt them. His participation in bizarre cult activities with Baldwin and Echols, while not conclusive of intent standing alone, reinforces the probability of his participation in such brutal murders. Finally, the appellant’s detailed knowledge of the injuries inflicted on the boys suggests that he was in physical proximity to the activities taking place and took a much more active role than he admitted. The jury was not required to give credence to the appellant’s contention that, for the most part, he was merely an observer. Riggins v. State, supra.
We conclude that there is substantial evidence the appellant purposely aided and facilitated his accomplices in the commission of first-degree murder and therefore find sufficient evidence to support his conviction.
Voluntariness of Confession
Prior to trial, the appellant moved to suppress his confessions on the grounds that they were not voluntarily given, that his waiver of Miranda rights was not made voluntarily, knowingly and intelligently, and that his waiver of rights was invalid because it was obtained without his parent’s signature (the appellant was seventeen at the time he was interrogated).
The testimony at the suppression hearing revealed the following sequence of events leading up to the appellant’s confessions. Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. The appellant’s name had been given to officers as one who participated in cult activities with Echols. Detective Sergeant Mike Allen questioned the appellant on the morning of June 3, 1993. The appellant was not considered a suspect at that time.
Detective Allen attempted to locate the appellant at home, but was unsuccessful. He found the appellant’s father at his work place and told him he wanted to talk to the appellant. Mr. Misskelley, Sr., said he would find the appellant and bring him to the work place. When the appellant arrived, Detective Allen asked him if he could come with him to the police department to talk about the case. The appellant readily accompanied Allen. He was not handcuffed and rode in the front seat of the car.
The two arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned the appellant for about an hour when they became concerned that he wasn’t telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise the appellant of his rights. Detective Allen read him a form entitled “YOUR RIGHTS,” and verbally advised him of the Miranda rights contained in the form. The appellant responded verbally that he understood his rights and also initialled each component of the rights form. There was no evidence of any promises, threats or coercion.
The form also contained a section entitled “WAIVER OF RIGHTS,” which read as follows:
I have read this statement of my RIGHTS and I understand what my RIGHTS are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing, no promises or threats have been made to me and no pressure or force has been used against me.
The waiver was signed by the appellant.
After he was advised of his rights and had waived them, the appellant was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took the appellant to look for his father so that his father could grant permission for the appellant to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.
Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained the appellant’s rights to him. The appellant verbally indicated he understood, and initialled and signed a second rights-and-waiver form that was identical to the first.
Detective Durham explained to the appellant how the polygraph would work and administered the test over the course of one hour. In Detective Durham’s opinion, the appellant was being deceptive in his answers and he was advised that he had failed the test. At that point, the appellant became nonresponsive.
Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of the appellant at about 12:40 p.m. They employed a number of techniques designed to elicit a response from the appellant. A circle diagram was drawn and the appellant was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently had no response. He was then shown a picture of one of the victims and had a strong reaction to it. According to Gitchell, the appellant sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape-recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of the appellant’s and had known the victims. The portion of the statement which the officers played was the boy’s voice saying, “nobody knows what happened but me.” Upon hearing this, the appellant stated that he wanted out and wanted to tell everything.
The officers decided to tape-record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, the appellant was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.
The evidence presented by the appellant at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, the appellant had not been deceptive in his answers to the polygraph questions. He raised the possibility that the appellant had been wrongly informed that he had failed.
Seven days after the suppression hearing, the trial court entered an order denying the motion to suppress. The appellant argues that the court’s ruling was erroneous.
When the voluntariness of a confession is in issue, we make an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession. We do not reverse a trial court’s finding of voluntariness unless it is clearly against the preponderance of the evidence. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). Among the factors to be considered in determining the validity of a confession are the age, education and intelligence of the accused, the advice or lack of advice on constitutional rights, the length of detention, the repeated or prolonged nature of questioning, or the use of mental or physical punishment. Id. A custodial confession is presumed involuntary and the burden is on the state to show that the confession was voluntarily made. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).
The appellant offers several reasons why we should invalidate his confession. First, he argues that the confession was the product of a promise of reward or leniency. He points to the use of the circle diagram, which he describes as an implied offer of leniency, and to the existence of a $30,000.00 reward which was in effect at the time the appellant was questioned. A confession obtained through a false promise of reward or leniency is invalid. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). However, there is no evidence that the appellant’s confession was obtained in such a manner. The circle diagram, while used to encourage the appellant to respond to questions, cannot be considered as a false promise of leniency. There was no implication that if the appellant talked the officers would recommend leniency or try to help him in any way. Likewise, the existence of a monetary reward does not invalidate the confession. Although their testimony was disputed, the officers testified at the suppression hearing that they did not communicate the reward offer to the appellant at any time. The trial judge was entitled to believe this evidence. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).
Next, the appellant argues that his age and mental capacity rendered his confession involuntary. While age and mental capacity are factors we consider, those factors standing alone are not sufficient to suppress a confession. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Douglas v. State, supra.
At the time the appellant was interrogated he was seventeen years old, and just thirty-seven days away from his eighteenth birthday. Persons younger than he have been held capable of giving voluntary confessions. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995) (fifteen-year old); Douglas v. State, supra (fifteen-year-old); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985) (sixteen-year-old); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), cert. denied,_U.S__, 115 S.Ct. 134 (1994) (sixteen-year-old). The appellant also points to evidence that his IQ was 72 and that he read at a third-grade level. A low score on an intelligence quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights. Oliver v. State, supra; Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). Oliver is particularly on point. There, we held that a fifteen-year old with an IQ of 74 and a second-grade reading level was capable of comprehending his Miranda rights and of waiving those rights. The appellant’s situation is similar. In fact, he was two years older than Oliver and had a slightly higher reading level.
As we have pointed out, the appellant was nearly eighteen-years old when his confession was made. He was advised of his rights, both verbally and in writing, on three separate and distinct occasions over the course of four hours. There was evidence that, between 1988 and 1992, he had been advised of his rights in juvenile proceedings on three occasions. He was no stranger to the criminal justice system, a factor which we have considered in the past. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Between the first time the appellant was advised of his rights and the time he gave his first statement, a period of just over four hours elapsed, which is not undue. The officers’ questioning was persistent, but that is permissible. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). There was no evidence of mental or physical punishment.
The appellant argues that his statements should be suppressed because of the techniques used by the police in questioning him. He is referring in particular to the use of the circle diagram, the polygraph, the picture of the victim, and the tape recording of the boy’s voice. We have said that police may use some psychological tactics in eliciting a custodial statement so long as the accused’s free will is not completely overborne. Noble v. State, supra. In Noble, we held that showing the accused a picture of the victim and telling him he would not pass a poly graph didn’t invalidate a confession. The circle diagram is a rather innocuous means of getting an accused to talk. It does not have any features which strike us as overbearing. The tape of the boy’s voice gives us pause. This is the type of tactic that comes perilously close to psychological overbearing, and we cannot condone its use. However, in this instance, since numerous other factors point to the voluntariness of the confession, we will not invalidate the confession.
After an independent review of the foregoing factors, we conclude that the trial judge’s determination of voluntariness was correct. We are likewise convinced, based upon the same facts, that the appellant’s waiver of his rights was voluntary, knowing and intelligent. When we analyze the validity of a rights waiver, we look to many of the same factors used in determining the voluntariness of a confession. See Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Hart v. State, supra.
The appellant’s next attack on the validity of his confession concerns the failure to have a parent sign his waiver of rights form. At the time the appellant signed his waiver, Ark. Code Ann. § 9-27-317(f) (Repl. 1993) provided that a juvenile’s waiver form must be signed by a parent, guardian or custodian. We addressed this issue most recently in Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). We held that, when a person under age eighteen is charged as an adult in circuit court, failure to obtain a parent’s signature on a waiver form does not render a confession inadmissible. The issue was first addressed in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). That opinion was delivered on May 17, 1993, seventeen days before the appellant was interrogated. We held unequivocally that, when a juvenile is charged as an adult, he becomes subject to the procedures applicable to adults. Therefore, the requirement of parental consent is limited to juvenile court proceedings. The appellant urges us to overrule Boyd and its progeny, but it would be the height of unfairness for us to tell the prosecutors and law enforcement officials of this state that a parental signature was not necessary, then declare nearly three years later that lack of such a signature was fatal to an accused’s confession. This is especially true in light of the fact that we reaffirmed Boyd in Ring and in the interim case of Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994). We therefore decline the invitation to overrule this line of cases.
The appellant further argues that the distinction between the rights accorded to those who are tried in juvenile court and those who are tried as adults violates the Equal Protection Clause. On appellate review, we presume that a statute is constitutional, and the attacking party has the burden of proving otherwise. All doubts are resolved in favor of constitutionality. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). Classifications are permitted which have a rational basis and are reasonably related to a legitimate government purpose. Our role is not to discover the actual basis for the legislation, but to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).
We can certainly conceive of a rationale which removes this statute from the specter of arbitrary and capricious government purpose. The legislature recognized in Ark. Code Ann. § 9-27-318(c) (Repl. 1993) that a juvenile over the age of sixteen may be prosecuted as an adult where his act would constitute a felony if committed by an adult. This is an acknowledgement that an older juvenile who commits a serious crime may not receive the protection of juvenile proceedings, but will face the consequences as an adult. The same rationale applies to the statute at hand. A juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.
The appellant next contends that his confession should have been suppressed due to the failure of Detective Allen to comply with Ark. R. Crim. P. Rule 2.3. That rule requires an officer who asks a person to come to a police station to take reasonable steps to make it clear that there is no legal obligation to comply with the request.
This issue arose in a unique procedural way at the trial level. The appellant never raised the point in his motions to suppress or at any time during the suppression hearing. During the suppression hearing, Detective Allen testified that he asked the appellant if he would come with him to the station and the defendant voluntarily did so. However, the state, at this point, was unaware of any Rule 2.3 problem, and no further testimony was elicited. After the suppression hearing, the appellant, in a post-hearing brief, raised the issue for the first time.
We recognize that the state has the burden of proving the voluntariness of a custodial confession. However, we are hesitant to hold that a defendant may file a general motion to suppress, containing no notice of any technical deficiency, then require the state to put on evidence of compliance with all conceivable technical requirements of the Rules of Criminal Procedure. This is totally contrary to our rule that objections must be raised in a timely manner. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). However, just as importantly, the appellant did not obtain a ruling from the trial court on this specific issue. The court’s order denying the motion to suppress was drafted by appellant’s counsel. It declared that appellant’s statements were voluntarily given, that the appellant was afforded his rights under the Constitution, that his rights were knowingly and willfully waived. There is no mention in the order, or during the course of any hearing, of a violation of Rule 2.3. An issue is precluded from review on appeal where there is no clear ruling by the trial court. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). In Bowen, the appellant moved to suppress his inculpatory statements on the grounds that his waiver of rights was invalid, his waiver was not voluntary, knowing and intelligent, and his statements were the fruit of an illegal arrest. The trial court ruled generally on the waiver questions, but did not specifically rule on the illegal arrest issue. We therefore declined to consider the issue on appeal. Similarly in this case, the appellant obtained rulings on the voluntariness of his confession and his waiver, but no ruling on his illegal seizure. As in Bowen, we will not consider the issue.
The appellant’s final attack on the validity of his confession concerns the failure of the police to record the interrogation in its totality. No Arkansas law requires this. We will con sider such a factor in the totality-of-the-circumstances mix, but we will not invalidate a confession for that reason alone.
Pre-Trial Matters
Before we move on to consideration of trial errors, there are two issues which arose before trial and which we will now discuss. The first is the appellant’s challenge to the constitutionality of Ark. Code Ann. § 16-89-111 (d) (1987). The statute reads:
A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that the offense was committed.
The appellant contrasts this statute with Ark. Code Ann. § 16-89-111 (e)(1) (1987) which provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the appellant with the commission of the offense. While offering no authority in support, he argues that the more stringent corroboration requirements in the case of accomplice testimony violate the equal protection clause. The same analysis we applied to the appellant’s previous equal-protection challenge applies here. There is a legitimate rationale for greater safeguards when an appellant’s conviction is based on the testimony of a third person rather than on his own words.
The next issue concerns the appellant’s attempt to depose the interrogating officers. The court offered to make the officers available for questioning, but would not require them to submit to depositions. We do not reverse for failure to grant discovery in a criminal case without a showing of abuse of discretion. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Ark. R. Crim. P. Rule 17.4. In Spencer v. State, 285 Ark. 339, 686 S.W.2d 436 (1985) and Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022 (1983), we held that a defendant was not necessarily entitled to take the discovery depositions of state witnesses. We have never held that a defendant should be allowed to depose interrogating officers. The public-policy considerations alone dictate that depositions of police officers should not be taken as a matter of routine, but only in rare cases, subject to the trial court’s discretion. A defendant’s discovery needs are ordinarily met by the broad access given to him by the Rules of Criminal Procedure. We find nothing in the record of this case to indicate that the trial court abused its discretion in denying the depositions.
Evidentiary Errors
The next issues concern various evidentiary rulings of the trial court. We note at the outset that a trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).
As we alluded to earlier, the appellant procured the services of polygraph expert Warren Holmes. Holmes was prepared to offer an opinion that the appellant was not being deceptive when the polygraph test was administered to him. The appellant asked the court to allow this opinion into evidence to show that he was falsely informed he had failed the test and that such false information was a catalyst to his confession. The court considered the evidence at the suppression hearing, but refused to allow any testimony at trial regarding the results of the polygraph. The court noted that such evidence would simply amount to a contest between two experts as to who had made the more accurate interpretation. The court said it would allow the appellant to show that he had been administered a polygraph and had been told he failed it. However, the appellant understandably declined this offer, fearing it might be too prejudicial in the absence of the countervailing opinion of Holmes.
Both the legislature and this court have recognized the inherent unreliability of polygraph tests. Ark. Code Ann. § 12-12-704 (Repl. 1995), provides that the results of a psychological stress examination shall not be admissible in the courts of this state. See also Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Baxter v. Dental Examiners Bd., 269 Ark. 67, 598 S.W.2d 412 (1980). However, the appellant argues that his proffered evidence was necessary to apprise the jury of the totality of the circumstances surrounding his confession. We believe our long-standing rule prohibiting the admission of polygraph results should prevail. Had the trial judge allowed Mr. Holmes to offer his opinion that the appellant’s answers were not deceptive, the state would have offered the opinion of Detective Durham that the appellant’s answers were deceptive. This would have created the very situation which the legislature and the courts have sought to avoid: the likelihood of credibility determinations being made by reference to the unreliable results of a polygraph examination. See generally Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).
The appellant cites us to Rock v. Arkansas, 483 U.S. 44 (1987) for the proposition that evidence which might ordinarily be considered unreliable is admissible to protect a defendant’s constitutional rights. Rock involved a defendant who testified in her own behalf and wanted to offer hypnotically refreshed testimony. The Supreme Court allowed the evidence, but the Court’s ruling is not applicable to this case. Rock only applies to the testimony of the defendant, not to witness testimony. Further, the basis of the ruling was the protection of the defendant’s right to testify in her own defense, which is not the issue here.
The appellant also cites Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988) for the proposition that evidence which may not be admissible to prove a person guilty is admissible as exculpatory evidence. Patrick involved the use of a portable breath test. We held that such a test could not be used to prove a person drove while intoxicated but could be used to prove that he did not. However, we were careful to make the point that such a test was sufficiently reliable to warrant admission into evidence. As we have already stated, that is not the case with polygraph results. We therefore uphold the trial court’s exclusion of this evidence.
The next point concerns the testimony of Dr. Richard Ofshe, an expert in the coercive influence of police interrogation techniques. Dr. Ofshe was allowed to offer an opinion that the tactics used by the West Memphis Police were suggestive and led the appellant to make his statements. As part of the basis for his opinion, Dr. Ofshe relied on the transcript of a three-hour interview he had conducted with the appellant. The court refused to allow the witness to refer to the interview. The appellant argues that this was error and cites A.R.E. Rule 703 for the proposition that an expert must be able to reveal the factual bases for his opinions. The appellant has not shown that he was prejudiced by the court’s ruling. The expert was allowed to identify all other matters on which he based his opinion, such as the tran scripts of the appellant’s statements, the appellant’s treatment records, the officers’ notes, and the officers’ testimony. Additionally, during cross-examination, Dr. Ofshe was asked if, before hearing the officers testify, he had formed a preliminary opinion regarding the coercive nature of the interrogation. He answered that his opinion at that point was “based on the materials available to me which included my having interviewed Jessie Misskelley.” The jury was thus informed that Dr. Ofshe had interviewed the appellant and had used that interview as a basis for his opinion. Therefore, we find no prejudicial violation of Rule 703.
The appellant also presented the testimony of a psychologist, Dr. William Wilkins, for the purpose of showing that his confession was the product of coercion. Dr. Wilkins offered his opinion that the appellant was “quite suggestible.” The doctor had administered a suggestibility test to the appellant based upon the Gudjonsson suggestibility scale. The court held a hearing on the admissibility of the test results. Dr. Wilkins admitted he had never administered the test before. The state called another psychologist, Dr. Vaughn Rickert, to testify that he had never heard of the test and, based on what he had just been informed, he had serious concerns about its validity. The court refused to allow evidence of the test results, citing its unreliability and Dr. Wilkins’ lack of experience in administering it.
Again, the appellant cannot show he was prejudiced by the court’s ruling. Dr. Wilkins was allowed to offer his opinion. Further, he informed the court that his opinion would not be altered by the absence of the test results. We will not reverse in the absence of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
The final evidentiary issues can be discussed together. The appellant argues that the following evidence was erroneously admitted because it was either irrelevant, or its probative value was outweighed by its unfairly prejudicial effect: 1) a picture of Jason Baldwin wearing a black T-shirt with a skull and the name of the group Metallica on it; 2) testimony of a witness that she attended a cult meeting with the appellant and Echols; 3) a book on witchcraft found in Echols’ home; 4) the testimony of Melissa Byers that her son told her that a man wearing black had taken his picture; 5) fiber evidence linking Baldwin and Echols to the crime; 6) boots worn by Baldwin and Echols; and 7) testimony that Echols was observed near the crime scene on the night of the murder.
Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. A trial court’s ruling on relevancy is entitled to great weight and will be reversed only for an abuse of discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). As the appellant has taken pains to point out, the credibility of his confession was the linchpin of the case. Every item of evidence listed above served to corroborate some aspect of the appellant’s confession: the description of Baldwin’s shirt, the involvement in the occult, the fact that Echols had photographed the victims and had been watching them, and the fact that Echols and Baldwin were involved in the crime. Evidence which is offered by the state to corroborate other evidence is relevant. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).
The appellant’s argument that the evidence was more unfairly prejudicial than probative must also fail. With the confession being the state’s only meaningful evidence against the appellant, any corroboration was highly probative. This is especially true in light of the appellant’s contention that his confession was false. The prejudicial effect of the evidence was not so high as to outweigh its important probative value. We defer to the sound discretion of the trial judge and uphold his ruling admitting the evidence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Jury Instructions
The appellant requested two instructions which were not given by the court. The first instruction concerned accomplice liability, and read as follows:
An accomplice is criminally responsible for the acts of others only to the extent he has shared criminal purpose with the others. If you ultimately find that Jessie Lloyd Misskelley, Jr. was an accomplice, you may find him guilty only of a crime you determine that he had a conscious object to engage in, or a conscious object to cause such a result.
The appellant based his proffered instruction on language from Fight v. State, supra.
The court instructed the jury on accomplice liability using AMCI 401. If an AMCI is available on the subject, a nonAMCI instruction should not be used unless the AMCI does not state the law. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). AMCI 401 matches the language contained in Ark. Code Ann. § 5-2-403(a) (Repl. 1993) and is a proper statement of the law. Therefore it was not error to refuse the appellant’s proffered instruction. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).
The appellant also claims it was error for the court to refuse to instruct the jury on manslaughter. The jury was instructed on capital murder, first-degree murder and second-degree murder. We note at the outset that the appellant cannot obtain reversal of his first-degree murder conviction on this issue. Failure to instruct on a lesser-included offense is harmless error where a jury has been instructed on some lesser-included offense, yet convicted the defendant of a greater one. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).
It is proper to refuse an instruction on manslaughter if there is no rational basis to support it. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). The appellant asked for the instruction on the chance that the jury might consider his conduct reckless, as opposed to purposeful or knowing. See Ark. Code Ann. § 5-10-104(a) (3) (Repl. 1993). Reckless conduct requires the state of mind of conscious disregard of a perceived risk. Disregard of the risk must constitute a gross deviation from the standard of care that a reasonable person would observe in the situation. See Ark. Code Ann. § 5-2-202(3) (Repl. 1993). By his own words, the appellant was fully aware of the magnitude of the crimes to which he was an accomplice. He was fully aware of the severe beating, cutting, and sexual molestation of the victims. His retrieval of the boy who tried to escape is evidence of an overall state of mind which far exceeds “gross deviation from the stan dard of care.” We hold that there was no rational basis for a manslaughter instruction.
Mo.tion for New Trial
The appellant moved for a new trial on the ground of newly discovered evidence. The motion was denied by the trial court. It was based on the testimony of the medical examiner, Dr. Frank Peretti.
On two occasions before trial, appellant’s counsel asked Dr. Peretti if he had an opinion on time of death. Dr. Peretti stated that he did not. However, after the appellant’s trial was concluded, Dr. Peretti testified at the Baldwin/Echols trial that his estimate of time of death was between 1:00 a.m. and 5:00 p.m. on May 6, 1993. The appellant moved for a new trial claiming that this newly discovered evidence cast doubt on the validity of his confession. He also claimed that, at the Baldwin/Echols trial, Dr. Peretti offered testimony that lack of blood at the scene indicated the victims might have been killed elsewhere and that the type of cuts in Steven Byers’s genital area would require some skill and precision.
Newly discovered evidence is the least favored ground for a new trial motion. When a new trial is denied on this ground, we will reverse only for an abuse of discretion. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). To prevail, the appellant must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).
The appellant used due diligence in seeking an opinion from Dr. Peretti regarding time of death. The same cannot be said of the other evidence. The evidence regarding the use of the knife and the scene of the murders was brought out in the Baldwin/Echols trial on vigorous cross-examination. The appellant has not shown that, prior to his conviction, he could not have discovered such evidence.
The question regarding Dr. Peretti’s opinion is whether it would have impacted the outcome of the trial. We think it would not have. The appellant’s statements were already filled with mistakes, inconsistencies, and gross inaccuracies regarding the time that the murders took place. It is obvious that the jury disregarded the appellant’s time estimates, as it was their right to do. Dr. Peretti’s opinion could only have served to reinforce what the jury already knew: the appellant was either mistaken or not telling the truth regarding the timing of events on May 5.
915 S.W.2d 702
APRIL 1, 1996
Based upon the foregoing, we find that the trial court did not abuse its discretion in denying the new trial.
Compliance with Rule 4-3(h)
The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3(h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.
Affirmed.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.
No response.
Bradley D. Jesson, Chief Justice.
We write to address an issue which we did not discuss in our February 19, 1996, opinion. In that portion of the appellant’s brief devoted to the failure of the officers to record his entire interrogation, the appellant mentions briefly, and without citation to any authority, the possibility of an equal protection violation. His argument is based upon the existence of what is known as the Law Enforcement Officers’ Bill of Rights, Ark. Code Ann. § 14-52-301 to 307 (Supp. 1995). In particular, he points to Ark. Code Ann. § 14-52-303(7) which provides in pertinent part:
All interrogations of a law enforcement officer in connection with an investigation against him or her shall be recorded in full.
The appellant’s argument is that, under this statute, a police officer benefits from greater protection during an interrogation process than an accused. He claims that there is no rational basis for such a distinction. Without reaching the issue of whether a rational basis exists, we hold that the appellant’s argument must fail. The “Bill of Rights” is in fact only a recommendation of the legislature (“the purpose of this subchapter is to recommend a basic Bill of Rights for law enforcement officers. . . .”), giving municipalities the authority to establish “any or all” of the Act’s procedures as “a guide for negotiating personnel issues with their law enforcement officers.” Ark. Code Ann. § 14-52-301 (Supp. 1995). The appellant has made no showing that there is, in fact, a municipality which has actually adopted the particular provision of which he complains. In other words, we cannot assume that police officers are currently enjoying the procedural protections contemplated by the Act. Therefore, we cannot say under these circumstances that mere recommendations by the legislature, which leave open the authority of municipalities to establish or not establish all or any part of the law, constitute a classification which violates the equal protection clause.
The other matters raised in appellant’s petition for rehearing concern our holding on the Ark. R. Crim. P. Rule 2.3 issue. That issue was fully developed, both in the briefs and during oral argument, and was carefully considered by the court. It will not be addressed again on rehearing.
The appellant’s trial was held in Clay County rather than Crittenden County as the result of a change of venue.
Two bicycles were recovered on May 6 in a bayou near the murder scene.
Another part of the statute, Ark. Code Ann. § 5-10-102(a)(3) provides that a person commits first degree murder if he knowingly causes the death of a person 14 years of age or younger. However, the record does not show that the jury was so instructed.
Ark. Code Ann. § 12-12-703 (Repl. 1995) provides that no psychological stress evaluation shall be given to any person under age 18 without first having received written authorization from a parent or guardian.
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Robert L. Brown, Justice.
This is a capital case where the appellant, Albert Lewis Huggins, was convicted of murdering Clark White and sentenced to life imprisonment without parole. Huggins was further convicted of theft of an automobile and sentenced to 20 years imprisonment. On appeal, he argues that the evidence was insufficient to sustain the judgments. We disagree, and we affirm.
Clark White, also known as Troy White, was an employee of the Crittenden County Sheriff’s Department Drug Task Force. Although White worked for the Drug Task Force, he had a friendship with Huggins and a third man, Mark Lewis, also known as Renee Lewis, which involved smoking crack cocaine together. Lewis, who testified for the State at the ensuing trial, provided much of the factual background in this case.
Clark White had a credit arrangement with Huggins and Booker T. Shelton, a crack cocaine supplier in Memphis, Tennessee. Huggins would provide cocaine to White on credit with White using personal property as collateral for payment. Huggins in turn purchased the crack cocaine from his supplier, Booker Shelton. The “pawned” property would be released to White when he paid for the cocaine. On January 8, 1993, a Friday, White purchased crack cocaine from Huggins and smoked it with Lewis and Huggins at Huggins’s residence in Memphis. They also drank alcoholic beverages. Early Sunday morning, January 10, 1993, White had spent all of his money, and Huggins sold him more crack cocaine on credit, using a 1987 Pontiac Firebird as collateral. White drove the Firebird, but it was actually owned by the Crittenden County Sheriff’s Department. Later that day, White returned to Arkansas in a different car and cashed a $300 check at a convenience stroe to satisfy the debt to Huggins. The three men then went back to Huggins’s home in Memphis to smoke more crack cocaine.
Later on that Sunday, White’s money supply was again depleted, and again he used the Pontiac Firebird as collateral for $400. The three men continued to smoke crack cocaine in Memphis into Monday, January 11, 1993, but on that day they returned to Crittenden County so that White could obtain money to repay Booker Shelton and remove the Pontiac Firebird from “hock.” Shelton had told Huggins to return from Arkansas with either the car or the money to pay the debt.
Huggins and Shelton would not allow White to drive to Arkansas alone in the Pontiac Firebird because they were afraid that White would not come back. Huggins drove the car with White and Lewis as passengers to White’s trailer home near Crawfordsville in Crittenden County. White’s parents and brother lived next to him in separate trailers. During that same day, White began preparing chicken for the three men to eat, but at some point White and Lewis left the kitchen area to do laundry, leaving Huggins there alone. Prior to leaving, White had pulled “something” out of one of the cabinets, according to Lewis, and cut it open. When Lewis and White returned to the kitchen, Lewis saw Huggins holding White’s cup and pouring beer into it. The three men had eaten the prepared food and returned to the living room area, when White “keeled over” and began foaming at the mouth. According to Lewis, he immediately got up to run to get White’s mother for help, but Huggins stopped him, told him not to worry, and asked him for assistance in moving White to the couch. Huggins assured Lewis that White would be all right.
After White collapsed, Lewis heard something hit the garbage can in the kitchen. (Lewis earlier testified that this occurred when the three men were in the kitchen but later clarified this point on direct examination.) When he looked in the garbage can, he saw a plastic bottle of Sleep Away, a barbiturate agent used for putting animals to death. White had been issued the Sleep Away in 1989, when he had worked as an ordinance officer for the City of Earle. Lewis saw Huggins remove the Sleep Away container from the garbage can with a paper towel and put it in a basket or bowl in the kitchen area. Huggins subsequently admitted in a statement to State Police Investigator Edward Fitzpatrick that he used the paper towel because he did not want to leave his fingerprints on the bottle at that time. When Lewis asked Huggins what Sleep Away was, Huggins replied that it was poison for putting dogs to sleep.
Huggins got a cloth towel, put some ice in it, and placed it on White’s forehead. White was still foaming at the mouth. The men stayed in the trailer for another ten minutes and then left for Memphis in the Pontiac Firebird. Both Huggins and Lewis knew at that time that the car was owned by the Crittenden County Sheriff’s Department. On the way to Memphis, Tennessee, Lewis asked Huggins where the Sleep Away bottle was and Huggins replied, “Goddamn, I forgot it.” The two men took the car to Memphis and gave it to Booker Shelton. They did not return to White’s trailer home. The Firebird was found some days later in Memphis in the possession of Booker Shelton.
White’s body was found four days later on January 15, 1993, by his brothers. Subsequent medical examination revealed that his death was caused by a fatal dosage of pentobarbital, a barbiturate which is the active ingredient in Sleep Away. Both Lewis and Huggins were charged with premeditated capital murder in connection with the death of Mark White. Lewis pled guilty to second degree murder and theft of property and received a sentence of five years for murder and theft of property and received a sentence of five years for murder and a suspended sentence of 20 years for theft. On cross examination, Lewis first admitted and then denied making a statement to law enforcement officers that Clark White had pulled a jug from the cabinet, cut it open, and thrown the container in the trash can. Also, on cross examination, he denied making a statement that he did not see anyone but White pour contents from the container into his own cup. Lewis’s statement to law enforcement officers was not introduced into evidence by the State or by the defense.
Following the jury trial, Huggins was convicted of capital murder. During the penalty phase, Huggins told the jury that he “panicked” after White drank the Sleep Away. He was sentenced to life imprisonment without parole. He was further convicted of theft of the Pontiac Firebird and sentenced to 20 years.
The crux of Huggins’s appeal centers on whether the State provided sufficient evidence to support the two judgments of conviction. Evidence is sufficient to support the two judgments of convictions. Evidence is sufficient if it is substantial, that is, if the trier of fact can reach a conclusion without resorting to speculation or conjecture. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The evidence must also be forceful enough to compel reasonable minds to reach a conclusion one way or ther other. Id. When a defendant challenges the sufficiency of the evidence, we do not weigh the evidence but review it in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.; Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
The evidence of Huggins’s guilt in this case was circumstantial. Circumstantial evidence may constitute substantial evidence, but to do so it must exclude every other reasonable hypothesis consistent with innocence. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Trimble v. State, supra; Paige v. State, supra; Sheridan v. State, supra; Bennett v. State, supra.
Following these precepts for determining substantial evidence, we first take note of the fact that it is uncontroverted that White’s death was caused by a fatal dosage of pentobarbital which is the active ingredient found in Sleep Away. Viewing this evidence in the light most favorable to the State, the following proof was amassed by the State. Huggins had the opportunity to add Sleep Away to his drink container because Huggins was left alone in the kitchen while Lewis helped White take some laundry into another room. Huggins then held White’s cup and poured beer from his drink container into it. After White keeled over, Lewis heard something hit the garbage can, and when Lewis looked into the garbage can, he saw a Sleep Away container. Huggins told Lewis that the Sleep Away was a poison. After collapsing, White was foaming at the mouth and was unconscious. When Lewis began running for the door to get help from White’s mother, Huggins stopped him and stated that White would be all right. Huggins and Lewis placed White on the couch, and Huggins put a towel on his head. Huggins removed the Sleep Away bottle from the garbage can with a paper towel so that he would not leave his fingerprints. On their way to Memphis, Huggins remarked to Lewis when reminded of the Sleep Away container, “Goddamn, I forgot it.” Neither man notified medical or law enforcement authorities; nor did they contact White’s family about White’s unconscious state or the fact that he was foaming at the mouth. They further did not return to White’s trailer over the next four days to check on him. We conclude that the State’s evidence that Huggins perpetrated White’s murder was ample in this case. Furthermore, we cannot say that the jury clearly erred in determining that there was no other reasonable hypothesis which explains White’s death in light of these circumstances.
We next turn to the issue of the theft of the 1987 Pontiac Fire-bird. A person is guilty of theft, if he “[k]nowingly takes or exer cises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with the purpose of depriving the owner thereof.” Ark. Code Ann. § 5-36-103(a)(1) (1987). Again, Huggins asserts that there is no substantial evidence to support his conviction for the theft of the Pontiac Fire-bird owned by the Crittenden County Sheriff’s Department. We believe that the following evidence is substantial.
Although White’s car was actually owned by the Crittenden County Sheriff’s Department, he often used the car as collateral to finance his substance abuse. White “pawned” the care in Memphis on Sunday, January 10, 1993, to purchase more crack cocaine. He then needed to travel to Arkansas to obtain the money to pay off the debt. Lewis testified that Booker Shelton, Huggins’s crack cocaine supplier, instructed Huggins to return from Arkansas with either the car or the money. Huggins and Shelton would not allow White to go back to Arkansas in the car alone because they were worried that White would not return to Memphis. Huggins, Therefore, drove the three men to White’s trailer. When Huggins and Lewis took the car after White collapsed on January 11, 1993, they both knew that the Sheriff’s Department owned the car. Regardless of that fact, they delivered the car to Shelton.
The jury found Huggins guilty of theft and, no doubt, determined that he knowingly exercised unauthorized control of a car which belonged to the Sheriff’s Department and not to White. The jury further could reasonably have inferred from what ultimately transpired that Huggins exercised unauthorized control of the vehicle in Arkansas for the purpose of delivering it to Booker Shelton in Memphis. That is enough to constitute substantial evidence of theft.
There is one final point. The theft information in this case charged Huggins with committing the offense on January 11, 1993, and the State argued in opposition to Huggins’s motion for directed verdict that the theft occurred after White collapsed. At one point in its ruling, the trial court stated that the theft occurred on January 10, 1993, at the time of the “pawn” of the car in Tennessee. We disagree with that statement because it runs contrary to the information and to the State’s theory of the case. Nonetheless, the trial court correctly denied the motion, even if for the wrong reason, and we affirm its decision. See Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993).
The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.
Affirmed.
Dudley, Newbern, and Roaf, JJ., dissent. | [
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David Newbern, Justice.
Tony Williams was convicted of rape, aggravated robbery, and felony theft. The prosecution offered six photographs of the elderly female victim, showing her beaten and bloody condition shortly after the crime occurred. The Trial Court compared the photographs and admitted four of them. Counsel objected to the pictures on the ground that their prejudicial effect outweighed their probative value and that they were cumulative. He renews the prejudice argument on appeal. He also contends it was error to admit a “rape kit” laboratory report compiled by a State Crime Laboratory analyst. He contends the report was hearsay and cumulative to the analyst’s testimony. We find no error and affirm.
1. The photographs
Mr. Williams cites cases such as Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), in which we held the Trial Court abused his discretion by admitting too many autopsy pictures of a victim. His argument, for which he cites no authority, is that the victim testified about her injuries; therefore, the photographs were not helpful to the jury but served only to inflame them.
The Trial Court committed no abuse of discretion in allowing the photographs. The fact that photographs may be inflammatory is not alone sufficient reason to exclude them if they enable a witness better to describe that which they portray or if they corroborate the witness’s testimony. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1992); Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989). Our law clearly contemplates situations where photographs are used in addition to the testimony of a witness as to that which the photographs depict.
2. The report
The use of a State Crime Laboratory report as evidence in a trial is governed by Ark. Code Ann. § 12-12-313 (Supp. 1993). Subsection (a) of the statute provides that such a report is admissible when properly attested. Mr. Williams argues the statute does not apply when the serologist who compiled the report testifies in person. That is not so because subsection (c) of the statute provides specifically that “the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel.”
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Callis L. Childs, appeals the amended decree of the Faulkner County Chancery Court, filed March 16, 1994, granting specific performance of a contract for the sale of appellant’s residence to appellee, Jerry Adams. Appellee cross-appeals from that portion of the amended decree denying his request for attorney’s fees. Jurisdiction of this case is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and (a)(8).
We review chancery cases de novo. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). However, in reviewing the chancellor’s findings, we will not reverse unless they are clearly erroneous or clearly against a preponderance of the evidence, and the burden is upon the appellant to show that the findings are erroneous. Id.; Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); ARCP Rule 52(a).
I. Direct appeal A. Authority of the trial judge
Appellant first argues that the consent decree entered in Hunt v. State of Arkansas, Number PB-C-89-406 (E.D. Ark. November 7, 1991, as amended September 24, 1992) (“Consent Decree”), ended the elective term of office of Chancellor Lawrence E. Dawson of the 11th West Judicial District effective December 31, 1992, and, therefore, the Chief Justice of this court was without authority to subsequently assign him to hear this case upon the recusal of the trial judges of the 20th Judicial District. Appellant does not challenge the jurisdiction of the chancery court itself over this action. Appellant concedes he raises this issue for the first time on appeal, but characterizes it as one of subject matter jurisdiction that must be reviewed. We disagree.
Appellant’s challenge to Chancellor Dawson’s authority does not raise an issue of subject matter jurisdiction. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). In Simpson, the appellant argued for the first time on appeal that the chancellor and probate judge who tried that criminal case in the circuit court lacked subject matter jurisdiction to do so. This court ruled that the issue presented was not one of subject matter jurisdiction, and, accordingly, refused to consider the issue because it was not preserved for appeal. This court stated:
Subject matter jurisdiction, however, is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter. . . . Moreover, jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it.. .. Here, the [circuit court] clearly had jurisdiction over the two rape charges and the issue raised by Simpson concerns the authority of the individual who filled that position. As was the case in Nation [v. State, 283 Ark. 250, 674 S.W.2d 939 (1984)], that issue relates to the authority of the sitting judge and not to the jurisdiction of the circuit court.
310 Ark. 493, 499, 837 S.W.2d 475, 478 (citations omitted). Accord Bradford v. Bradford, 49 Ark. App. 32, 894 S.W.2d 616 (1995) (holding the appellant’s objection to the authority of a circuit judge to hear his divorce case in chancery was waived for failure to raise it below).
The present case, arguably, is distinguishable from Simpson because appellant asserts that Chancellor Dawson was “not a judge at all” as a result of the Consent Decree. Yet, appellant has failed to abstract the facts necessary for us to assess the effect of the Consent Decree upon Chancellor Dawson’s judgeship, which determination is prerequisite to any consideration of appellant’s argument on its merits. Further, the portion of the record pertinent to this issue does not reveal the assignment of Chancellor Dawson was invalid. In our recent decision, Neal v. Wilson, 321 Ark. 70, 75, 900 S.W.2d 177, 179 (1995) (per curiam), we held that, where the record reflected the challenged assign ment of the trial judge was valid, the assignment gave him jurisdiction to try the case, and stated:
It is the parties’ or trial court’s responsibility to apprise this court as to whether an assignment is necessary under Act 496. Once that assignment is made, that responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment.
On this record, appellant’s first assignment of error fails.
B. Attorney disqualification
Appellant next argues that the trial court erred in refusing to disqualify appellee’s attorneys, William C. Adkisson and Larry E. Graddy. Appellant filed a pretrial motion to disqualify, alleging that Adkisson was a business partner of Graddy, that Graddy had counseled with appellant regarding the contract for the sale of appellant’s residence, and that the resulting conflict of interest disqualified Adkisson. At the hearing on the motion to disqualify, appellant argued that Graddy’s conflict of interest also disqualified Graddy. We affirm the trial judge’s denial of the motion to disqualify.
The evidence introduced at the hearing revealed that, in May 1993, appellant presented appellee with a written offer to swap appellant’s residence for real property owned by appellee, plus cash. The swap offer was drafted by appellant, who is a practicing attorney, but was never accepted by appellee. Graddy’s purported conflict of interest arises from certain conversations between him and appellant regarding the proposed swap transaction. In June 1993, the sale contract that is the subject of this appeal was executed by the parties. The sale contract was drafted by Graddy as legal counsel for appellee.
As regards the proposed swap transaction, appellant testified that he drafted the swap offer after speaking with Graddy about the swap transaction at least twice, once by telephone and once at the county courthouse. Appellant testified that he had asked Graddy for drafting suggestions regarding the swap offer. Appellant testified that he did not send Graddy a copy of the swap offer, could not remember if he notified Graddy that the swap offer had been sent to appellee, and was charged no fee by Graddy. Appellant testified that he had questioned Graddy’s competence to handle a swap transaction, and that it was his understanding and intent that Graddy would handle the transaction for him. Graddy testified that appellant called him at least once about a contemplated swap of his residence, and that his recollection of that conversation was “that [appellant] was simply trying to be sure that a swap could take place and that the title could be cleared and that good — an insurance policy, without exceptions, could be given to both parties.” Graddy testified that he never considered appellant’s conversations with him to be a request for legal services. Graddy testified that, although he could not recall if appellant had initially disclosed that appellee was the other party to the proposed swap transaction, that disclosure was made in May 1993.
As regards the sale contract, appellant testified that he had not consulted with Graddy in any way, and that appellee had disclosed to him that Graddy would be preparing the sale contract. Graddy testified that he considered his representation to have been for appellee exclusively, and that he had disclosed to appellee his contact with appellant about the proposed swap transaction.
Graddy testified that he periodically responded to requests from appellant for advice about various legal matters relating to appellant’s clients. Graddy testified that he never billed appellant or was paid by him for these legal advices. Graddy characterized his relationship with appellant as friendship and testified that he had never represented appellant in any matter.
At the conclusion of the hearing, the trial court announced from the bench that the conversations between appellant and Graddy “have just been friendly conversations ... rather than any kind of a [sic] attorney-client relationship.” The trial court’s finding that no attorney-client relationship existed between Graddy and appellant is not clearly erroneous or against the preponderance of the evidence. Hence, appellant has failed to show Graddy had a conflict of interest that required his disqualification. Accordingly, we do not address appellant’s contention that the trial court erred in denying his motion to disqualify Adkisson on the theory that Graddy’s purported conflict of interest should have been imputed to Adkisson.
C. Contract formation
Appellant next argues that the trial court erred in ruling that the sale contract was a valid and binding offer and acceptance. The express terms of the sale contract required appellant, as the offeree, to sign and physically deliver the sale contract to appellee, as the offeror, prior to 12:00 noon on June 15, 1993. At trial, the parties offered conflicting testimony regarding the time of day that the signed sale contract was delivered to appellee on June 15, 1993. The trial court made no finding of fact on this issue and held it was unnecessary “to resolve the disparity in this testimony due to its finding that the parties by their actions waived contractual provision, resulting in an enforceable agreement of sale.”
An offer which specifies a period of time for its duration, such as appellee’s offer, terminates upon the lapse of the specified time. Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978); Burnett v. Holiday Inns of America, 239 Ark. 642, 391 S.W.2d 27 (1965). A terminated offer cannot later be accepted. McClure Ins. Agency v. Hudson, 238 Ark. 5, 377 S.W.2d 814 (1964) (offer terminated by offeree’s express rejection). Substantial authority exists for the proposition that a late acceptance, in reality, constitutes a counteroffer that must in turn be accepted to form a contract. E.g., Houston Dairy, Inc. v. John Hancock Mut. Life Ins. Co., 643 F.2d 1185 (5th Cir. 1981); 2 Richard A. Lord, Williston on Contracts §§ 6.55 n. 2 & 6.56 (4th ed. 1991); I. E. Allan Farnsworth, Farnsworth on Contracts § 3.19, at pp. 256-57, & n. 16 (1990); Restatement (Second) of Contracts §§ 41 & 70 (1981). At trial, appellant testified that he knew the deadline for accepting the offer was past when he signed the contract. On these facts, there seems to be no reason to give appellant’s late acceptance any effect other than that of a counteroffer. 1 Joseph M. Perillo, Corbin on Contracts § 3.20 (rev. ed. 1993).
Appellant argues that, even assuming his late acceptance constituted a counteroffer, no contract was formed because appellee did not validly accept the counteroffer. We disagree. A party’s manifestation of assent to a contract is judged objectively, Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991), and may be proved by circumstantial evidence. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). A party’s manifestation of assent to a contract may be made wholly by spoken words or by conduct. ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990) (citing Restatement (Second) of Contracts § 19 (1981)).
At trial, both parties testified that, on June 15, 1993, appellee went to appellant’s office to pick up the fully executed contract. Appellee testified that, thereafter, but prior to his receipt on August 9, 1993 of a letter from appellant purporting to revoke his acceptance of the original offer, appellee brought his contractor into the residence several times to discuss proposed renovations, received a key to the residence from appellant for access during his absence one weekend, purchased several thousand dollars’ worth of additional household furnishings, and sold stock for the purpose of funding the purchase price due upon the scheduled closing date, August 30, 1993. The facts of appellee’s weekend visit to the residence during appellant’s absence and the visits to the residence with his contractor were corroborated by the testimonies of appellant’s neighbor, Marilyn Larson, and appellee’s contractor, Kenneth Hineline, respectively. Appellant testified that he gave appellee the impression that the sale would be consummated.
Appellee’s conduct manifested his unequivocal acceptance of appellant’s counteroffer, thereby forming a valid contract, even assuming no timely acceptance of the original offer was accomplished. Without approving the trial court’s reasoning, we conclude that its ruling that a valid contract was formed is not clearly erroneous or against the preponderance of the evidence.
D. Balancing of the equities
Appellant next argues the trial court erred in granting specific performance because the equities favored appellant inasmuch as enforcement of the sale contract would cause him to lose his elected office as Justice of the Peace due to his failure to find other adequate housing within his district, and because he would be deprived of his home of many years. The argument is meritless. The first inequity claimed, the loss of appellant’s elected office, is a moot issue because, as appellant acknowledges in his reply brief, he was not returned to his elected office in the November 1994 election. The second inequity claimed, the loss of appellant’s residence, is completely unpersuasive inasmuch as the sale contract was freely entered into by appellant.
E. Historic preservation
Appellant next argues that the trial court erred in granting specific performance because appellee’s planned renovations would destroy the architectural integrity of appellant’s residence, thereby violating this state’s public policy to engage in historic preservation. This argument is meritless. First, as appellant’s counsel acknowledged in oral argument, appellant’s residence is not listed with either the federal or state registers of historic places. Second, even if the residence were listed, this state’s public policy with respect to historic preservation does not support appellant’s argument. We refer to Arkansas Code Annotated § 13-7-109 (Supp. 1993), which creates the State Register of Historic Places, and clearly provides: “Listing a privately owned property in the State Register of Historic Places shall in no way violate or abridge the lawful owner’s right to use, modify, or dispose of said property.” Section 13-7-109(d).
F. Restitution
Appellant’s final argument is that the trial court erred in denying him restitution for his expenditures for improvements to the sidewalk and porch in the amount of $8,645.00 in October 1993, and for several repairs totaling $1,036.17 during the period from August 9, 1993 to December 15, 1993. Ruling from the bench, the trial court disallowed “damages,” and, in response to appellant’s counsel’s request for clarification regarding the $8,645.00 expenditure, stated that, although the improvement may have enhanced the property’s value, reimbursement would not be ordered because it was “something that could have waited” that was undertaken by appellant at his own risk during the pendency of the present action. The order appealed summarily denies damages for either party. We affirm that ruling.
Appellant was not entitled to restitution for his expenditures. The restitutionary goal, we have stated, ‘“is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.’” Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 602, 864 S.W.2d 817, 823 (1993) (quoting Dan B. Dobbs, Law of Remedies, § 1.1 (2d ed. 1993)). Accord Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943) (citing Restatement of Restitution § 1 (1937)). The circumstances of this case are such that, although appellee is benefitted by appellant’s expenditures, it is not unjust for him to retain them.
First, appellant, as the breaching party, seeks reimbursement for expenditures which, by his own testimony, were made without appellee’s consent. Second, the nature of these expenditures do not support appellant’s claim to restitution. With respect to the property improvement, appellant runs afoul of the principle that one who officiously confers a benefit upon another is not entitled to restitution therefor. Restatement of Restitution § 2 (1937); see Brookfield, 205 Ark. 573, 169 S.W.2d 662 (payment of taxes in good faith by one claiming to be the owner of land and without knowledge of any claim to the land was not officious in making the payment and was entitled to restitution therefor). Similarly, appellant was not contractually obligated to provide the property repairs incurred before the scheduled closing date inasmuch as the sale contract only required conveyance of the residence in “as is” condition. As to the repairs incurred after the scheduled closing date, we observe that appellant’s expenditures would have been avoided but for his wrongful refusal to perform the sale contract.
Appellant also argues that his request for reimbursement should have been granted under the common-law principle that money payments or “equitable compensation” to the contracting parties may be decreed in a case granting specific performance of a contract for the conveyance of real property. Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985). Equitable compensation payments are intended to equalize losses between the parties occasioned by the delay in performance of the contract. Loveless v. Diehl, 236 Ark. 129, 364 S.W.2d 317 (1963). This court has stated:
The two charges are equitably offsetting and should go together. The sellers are charged with the rental value because they have had the use of the buyers’ land, and the buyers are charged with interest because they have had the use of the sellers’ money.... To make either charge without the other is evidently unwarranted, for it gives the favored party the use of both the land and the money.
Id. at 134, 364 S.W.2d at 322. Even assuming the principle of equitable compensation is applicable to the expenditures for which appellant seeks reimbursement, Loveless indicates it would have been error for the trial court to have granted appellant’s request for reimbursement under this equitable principle, absent a determination and award of appropriate offsetting charges for appellee.
II. Cross-appeal — Attorney’s fees
On cross-appeal, appellee assigns as error the trial court’s denial of his request for attorney’s fees under Arkansas Code Annotated § 16-22-308 (Supp. 1995), which, in pertinent part, authorizes attorney’s fees in civil actions “for . . . breach of contract.” Relying upon the doctrine of election of remedies, the trial court ruled that this action “is not a suit to recover for breach of contract, but is a suit asking the Court to perform it,” and, therefore, section 16-22-308 was not applicable. We disagree.
The election doctrine operates to preclude the complainant who simultaneously seeks affirming and disaffirming remedies from receiving an award that “over-compensates and over-restores” him for his injury by permitting recovery on both theories. Smith, 314 Ark. 591, 864 S.W.2d 817; Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). Appellee did not offend the election doctrine because he sought only the affirmance remedy of specific performance for his injury. Further, appellee’s fee request was collateral or supplemental to the underlying litigation on the contract. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). As such, the fee request was not an ingredient of and did not require consideration with the underlying litigation. Id. Thus, the policy concern supporting the election doctrine — to avoid duplicative remedies — was not a valid consideration with respect to the fee request. We conclude the trial court’s interpretation of section 16-22-308 was erroneous as a matter of law.
The instant action is covered by section 16-22-308. Our rul ing is controlled by Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995), in which we affirmed an award of attorney’s fees under section 16-22-308 in an equitable action by lessors seeking cancellation of lease agreements due to lessees’ alleged abandonment and breach of implied lease covenants. See also Griffin v. First National Bank, 318 Ark. 848, 888 S.W.2d 306 (1994) (stating, in dicta, that the trial court correctly found an action to enforce a guaranty agreement was covered by section 16-22-308). That portion of the appealed order denying attorney’s fees to appellee is reversed and the case is remanded to the trial court for reconsideration of that request consistent with this opinion.
The trial court’s judgment is affirmed on direct appeal and reversed and remanded on cross-appeal.
Special Justice Herman L. Hamilton, Jr. joins in this opinion.
Brown, J., not participating.
This analysis mirrors the well-established principle of contract law that an acceptance varying the terms of the offer is a rejection of the offer and is a counteroffer that must be accepted to constitute a contract. Younts v. City of North Little Rock, 294 Ark. 501, 744 S.W.2d 715 (1988); Byford v. Gates Bros. Lumber Co., 216 Ark. 400, 225 S.W.2d 929 (1950). | [
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Donald L. Corbin, Justice.
Appellant, National Park Medical Center, Inc., d/b/a AMI National Park Medical Center, a provider of Medicaid services in Garland County, appeals the order of the Pulaski County Circuit Court granting the cross-motion for summary judgment of appellees, the Arkansas Department of Human Services and Tom Dalton, in his official capacity as the director thereof. Appellant questions the validity of certain administrative rules adopted by appellees to implement the Medicaid Inpatient Obstetrical and Routine Newborn Care Waiver Program (“OB Waiver Program”), as violative of the Arkansas Administrative Procedure Act (“APA”), Ark. Code Ann. § 25-15-201 to -214 (Repl. 1992 & Supp. 1993), and the Arkansas Freedom of Information Act (“FOIA”), Ark. Code Ann. § 25-19-101 to -107 (Repl. 1992 & Supp. 1993). Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We affirm the trial court’s judgment.
Background
The facts of this case are undisputed. The OB Waiver Program restricts the provision through Medicaid of certain inpatient obstetrical and routine newborn services, formerly available from any Medicaid provider hospital, to only those Medicaid provider hospitals designated by contract with appellees. During the period from approximately November 16, 1993, to approximately March 23, 1994, appellees took the following actions with respect to the OB Waiver Program: solicitation of bids from Medicaid provider hospitals in six counties, including Garland County, for provision of OB Waiver Program services; award of the provider contracts pursuant to competitive bid; execution of the Garland County provider contract with St. Joseph’s Regional Health Center located in Hot Springs; acquisition of a waiver from the federal Health Care Financing Administration (“HCFA”) for the provider contracts as regards certain provisions of the federal Social Security Act that the provider contracts would otherwise violate; and subsequent application for an amended HCFA waiver. Appellees developed the concepts of the bid solicitation and HCFA waiver at staff meetings that were not open to the public.
The original party-plaintiff and appellant’s corporate predecessor-in-interest, American Medical International, Inc. d/b/a AMI National Park Medical Center (“AMI”), commenced this action on February 25,1994, by filing a complaint in the Pulaski County Chancery Court, as amended on May 10, 1994. AMI was an unsuccessful bidder for the Garland County provider contract. Pursuant to subsequent court orders, the action was transferred to the Pulaski County Circuit Court and appellant was substituted as party-plaintiff. The amended complaint alleged that the foregoing actions of appellees constituted “De-Facto Rulemaking” in violation of the APA’s procedures for adoption of administrative rules of section 25-15-204 and the FOIA’s open public meetings requirement of section 25-19-106, and prayed for declaratory and injunctive relief.
On December 22, 1994, appellees published a “Notice of Rule Making” in the Arkansas Democrat-Gazette with respect to the changes in the Medicaid program contemplated by the bid solicitation. On or about December 22, 1994, appellees also mailed notices concerning implementation of the provider contracts to health care providers and Medicaid beneficiaries as required by the HCFA. Appellees also prepared revised pages for the Medicaid Provider Manual reflecting the changes in the Medicaid program necessitated by implementation of the provider contracts.
Appellees provided the period from December 22, 1994, to January 30, 1995, for interested parties to submit written data, views or arguments concerning the adoption of the proposed rules. On January 11, 1995, appellees filed the proposed rules with the Arkansas Secretary of State and Arkansas State Library, with an adoption date of April 1, 1995.
On February 17, 1995, appellant filed a motion for summary judgment supported by a document entitled “Undisputed Facts.” On February 28, 1995, both parties signed and filed a document entitled “Amended Undisputed Facts.” On March 2, 1995, appellees filed a response to the motion for summary judgment and a cross-motion for summary judgment supported by the “Amended Undisputed Facts.” On March 3, 1995, appellant filed a response to the cross-motion. On March 31, 1995, the trial court filed its judgment, adopting the “Amended Undisputed Facts,” denying appellant’s summary judgment motion and granting appellees’ cross-motion for summary judgment. This appeal arises therefrom.
Standard of review
The facts are not in dispute. In such a case, this court simply determines whether the appellee was entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).
APA issue
With respect to the APA issue, the trial court ruled that, in developing the bid solicitation and awarding the provider contract, appellees followed state contracting procedures according to the Arkansas Purchasing Law, Ark. Code Ann. § 19-11-201 to -261 (Repl. 1994), and that appellant participated fully in that process; that the actions that occurred to develop the bid solicitation did not appear to be the type of activity contemplated in the statutory definitions of rule and rule making, thus no de facto rule making took place; and that after the bid solicitation process was completed, appellees then followed APA procedures.
Appellant’s first argument is that appellees did not comply with APA procedures before final implementation of the rules implementing the OB Waiver Program because appellees violated the public comment requirement of section 25-15-204(a)(2) by failing to provide the public with “reasonable opportunity” for comment prior to adoption of the rules. Therefore, appellant argues, the rules are invalid and appellees were not entitled to summary judgment as a matter of law. See section 25-15-204(f) (invalidating rules adopted without substantial compliance with section 25-15-204). Appellant’s argument is premised upon his assertions, first, that the opportunity for comment must “occur prior to the agency fixing on its decision,” and, second, that appellees were committed to all substantive details of the proposed rules prior to the end of the public comment period on January 30, 1995, owing to the provider contract and HCFA waiver that were then in place. This argument is meritless.
Appellant cites Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 417 A.2d 358 (Conn. 1979), for the proposition that the purpose of the public comment period is to provide the public with an opportunity to participate in the rule making process and to enable the agency to educate itself before establishing rules. While we do not disagree with this principle, we find Salmon Brook unpersuasive on the facts of the case before us because the issue presented to the Con necticut Supreme Court was simply whether the APA was applicable.
Appellant relies upon Mahoney v. Shinpoch, 732 P.2d. 510 (Wash. 1987), for its assertion that section 25-15-204(a)(2) is violated if the agency has “already fixed on its decision” prior to expiration of the public comment period. In Mahoney, the Washington Supreme Court quoted its state’s public comment statute, which required that prior to adoption or amendment of a rule the agency “shall consider fully all written and oral submissions respecting the proposed rule,” and held that the statute was not satisfied on the facts of that case. Mahoney, 732 P.2d. at 515. Because the APA public comment statute for the State of Washington differs substantially from section 25-15-204(a)(2) and because of factual differences in the cases, we find Mahoney unpersuasive. Further, appellant’s assertion that appellees had “fixed” upon the proposed rules by virtue of the provider contract and HCFA waiver is not borne out by the record. The provider contract, as abstracted, indicates that appellees had a right to cancel for convenience, and the undisputed facts reveal that amendment to the HCFA waiver could be requested. Logically, then, appellees had the ability to modify the proposed rules during the public comment period to the extent the rules emulated the terms of the provider contract or HCFA waiver. Appellant was also fully aware of the procedure followed by appellees since it competed for a provider contract and could not argue that its own ability to comment on the proposed rules was curtailed.
Appellant also summarily argues that the trial court’s ruling was erroneous because it focused entirely upon the bid solicitation and contract award to the exclusion of appellees’ other actions “prior to initiation of the formal rule making process.” We decline to address this argument because it is made without binding authority or convincing argument. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).
The trial court did not err in granting summary judgment on the APA issue. An administrative regulation is afforded the same presumption of validity given a statute, and we review agency rule making procedures to determine if the agency acted arbitrarily, capriciously, in an abuse of discretion, or otherwise not in accordance with the law. Department of Human Servs. v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989). Appellant has failed to carry its burden to demonstrate error.
FOIA Issue
With respect to the FOIA issue, the trial court quoted the open public meetings requirement of section 25-19-106(a) and ruled that appellees’ staff meetings held to develop the bid solicitation were not subject to the FOIA “because they do not appear to be the type of meeting that is contemplated by the statute.” Appellant argues that these meetings were subject to and conducted in violation of section 25-19-106 and that the appropriate action is to invalidate the administrative rules. This argument is meritless.
Section 25-19-106 provides, in pertinent part:
(a) Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.
The definitions provision of the FOIA, section 25-19-103, defines “public meetings” as follows:
(2) “Public meetings” means the meetings of any bureau, commission, or agency of the state, or any political subdivision of the state, including municipalities and counties, boards of education, and all other boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds.
Section 25-19-106, therefore, does not plainly encompass appellees’ challenged staff meetings. Further, we are aware of no case law that is contravened by the trial court’s ruling that these meetings were not subject to section 25-19-106. See John J. Watkins, Arkansas Freedom of Information Act, Chapter 4 “Open Meetings” and cases cited therein (2d ed. 1994). Being mindful of the administrative nightmare that would ensue if such staff meetings were required to comply with section 25-19-106, and consistent with our long-held rule that statutory construction requires a common sense approach, e.g., Dozier v. Ragsdale, 186 Ark. 654, 55 S.W.2d 779 (1932), we find the trial court’s ruling was not error.
Further, even if appellees’ staff meetings had violated section 25-19-106, voidability would not be an appropriate remedy on the facts of this case. In Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), a case relied upon by appellant, we stated that voidability of some agency actions is a valid option to enforcement of section 25-19-106, consistent with our policy to liberally construe the FOIA. However, we declined to grant the remedy of voidability on the facts of that case, even though we held the agency action violated the FOIA. We stated that development of the law on invalidation would necessarily be made on a case-by-case basis. Among our reasons for declining to grant voidability in Rehab Hospital Services Corp. were, first, that there was no showing that the agency knowingly violated the FOIA or that the appellant brought it to the agency’s attention, and, second, that the appellant did not seek to protect the public’s right to information, but sought invalidation solely for its own purposes.
In this case, there has been no showing that appellees knowingly violated section 25-19-106 by conducting staff meetings in which the concept of the bid solicitation, which was issued on or about November 16, 1993, was developed. Appellees’ purported FOIA violation via its staff meetings was brought to their attention when AMI filed a bid protest, dated January 28, 1994, with appellees and the Office of State Purchasing, pursuant to section 19-11-244 of the Arkansas Purchasing Law, of the award of any contract pursuant to the bid solicitation. It is noteworthy, however, that on January 14, 1994, according to the bid protest, AMI filed a bid pursuant to the bid solicitation. It is undisputed that the submitted bids were publicly opened on January 21, 1994, and that, by letter dated February 1,1994, appellees awarded the Garland County provider contract to St. Joseph’s Regional Health Center. By letter dated February 1, 1994, appellees also issued a final agency determination that appellant’s protest was without merit, a copy of which letter was attached to appellant’s response to the cross-motion.
The requirement that a party must bring the purported FOIA violation to the attention of the agency prior to filing a declaratory judgment action derives from the principle of exhaustion of administrative remedies. Rehab Hasp. Servs. Corp., 285 Ark. 397, 687 S.W.2d 840. The purpose for the requirement is to afford the agency the opportunity to address the issue, thereby reducing the potential for harm if we allowed invalidation on the basis of an unintentional past violation of the FOIA by the agency. Id. Otherwise, as we have held:
It would mean that any person who did not like a resolution, ordinance, rule, or regulation passed since the inception of the [FOIA] could have it invalidated, under the subterfuge of freedom of information, because of some unintentional past violation which had never been brought to the attention of the governmental entity. Such an interpretation would create a substantial amount of undesirable uncertainty.
Id. at 401, 687 S.W.2d at 843. This concern is aptly illustrated by the present case, in which it is not clear either that appellees were timely afforded an opportunity to address the purported FOIA violation arising from its staff meetings, or that appellant exhausted its administrative remedies. Although AMI eventually brought the purported FOIA violation to the attention of appellees, its bid protest was not filed until after the bid solicitation had been outstanding for some two months and the submitted bids, including AMI’s bid, had been publicly opened. Further, the record fails to show either that AMI appealed the purported denial of its rights pursuant to the procedure for appeal set forth in section 25-19-107 of the FOIA, which requires that a judicial hearing be conducted within seven days of the date of application of the aggrieved party, or that appellant sought judicial review of appellees’ final agency action that its bid protest was without merit.
The amended complaint filed in this action prays for a declaration that appellees’ actions were rule making conducted in violation of the APA and FOIA, for a preliminary injunction to pro hibit appellees from taking action as regards the HCFA waiver, the bid solicitation or the provider contracts, for a permanent injunction to prohibit appellees from taking action as regards the HCFA waiver, the bid solicitation, the provider contracts, and for a permanent injunction prohibiting appellees from taking action as regards the provision of Medicaid inpatient obstetrical and routine newborn care services pursuant to competitive bidding in violation of the APA and FOIA. Appellant does not seek to protect the public’s right to information. It seeks invalidation of appellees’ actions as regards the OB Waiver Program as an unsuccessful bidder for the provider contract for Garland County.
Finally, appellant argues that the trial court erred by focusing entirely upon the bid solicitation process to the exclusion of appellees’ other actions. The burden of obtaining the trial court’s ruling regarding issues sought to be raised on appeal belongs to the appellant. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). This argument is therefore without merit.
The trial court’s judgment is affirmed.
nection 25-15-202(4).
Section 25-15-202(5).
Section 25-15-204(a)(2) provides:
(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:
(2) Afford all interested persons reasonable opportunity to submit written data, views, or arguments, and, if the agency in its discretion shall so direct, oral testimony or argument. Where rules are required by law to be made on the record after opportunity for an agency hearing, the provisions of that law shall apply in place of this subdivision.
A copy of the bid protest was attached to appellant’s response to the cross-motion for summary judgment. | [
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Robert H. Dudley, Justice.
Appellant Curtis Vanderpool was driving a truck for his employer, Jackson Cookie Company, when the truck collided with a car being driven by Vicki Lynn Kaiko. Subsequently, appellant Vanderpool and Jackson Cookie Company’s workers’ compensation carrier, appellee Fidelity and Casualty Insurance Company, entered into a joint petition for approval of settlement. See Ark. Code Ann. § 11-9-805 (1987). The joint petition was approved by the Workers’ Compensation Commission.
Appellee Fidelity filed a complaint against Kaiko in which it alleged entitlement to a first lien on two-thirds of any net pro ceeds appellant Vanderpool might recover against her, up to the amount of compensation Fidelity had paid Vanderpool. Subsequently, appellant Vanderpool filed a suit for personal injuries against Kaiko. The trial court consolidated the two cases.
Appellant Vanderpool filed a motion for declaratory judgment in which he asked the trial court to declare that the statutory lien of appellee Fidelity against any judgment which Vanderpool might obtain against Kaiko was extinguished by the joint petition. In his motion, he contended that appellee Fidelity relinquished its lien in the settlement. Appellee Fidelity responded that the relinquishment of the subrogation rights was not part of the settlement agreement and a court cannot unilaterally alter terms of a settlement. On November 30, 1994, the trial court denied Vanderpool’s motion for declaratory judgment. The trial court was not asked to make a determination that there is no just reason for delay in appeal. See ARCP Rule 54(b). On December 15, 1994, Vanderpool gave notice of appeal from the order denying the motion for declaratory judgment. We dismiss the appeal because there has been no final order.
The Declaratory Judgment Act states that “declarations shall have the force and effect of a final judgment or decree.” Ark. Code Ann. § 16-lll-103(a)(2). However, they are not appealable unless they end the controversy or a severable part of it. If some relief remains to be granted, or a significant factual issue remains pending below, then the order is not final. Martin v. Black & White Cab Co., 321 Ark. 432, 901 S.W.2d 17 (1995). If an order leaves open significant issues relating to damages and relief, then the order is not final and appealable. Martin, 321 Ark. at 435, 901 S.W.2d at 19; see also Peterson v. Lindner, 765 F.2d 698 (7th Cir. 1985). A declaratory judgment does not automatically become final and appealable if issues relating to further relief have yet to be determined in the case. UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). However, if the plaintiffs are granted the only relief they sought, a declaratory judgment, the judgment is final and subject to appeal. United States v. State of Washington, 759 F.2d 1353 (9th Cir. 1985).
The case of Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980) is instructive. In that case, Mr. Boyett filed for divorce on June 6,1979, and Mrs. Boyett filed an answer and cross-corn- plaint on June 22, 1979. Id. at 36, 598 S.W.2d at 87. On October 2, 1979, Mr. Boyett filed a motion for declaratory judgment, asking the court to declare that Ark. Stat. Ann. § 34-1214 (Repl. 1962), rather than Act 705 of 1979, controls the disposition of property. Id. The chancellor held that Act 705 was controlling and stated that the judgment was final and appealable. To the contrary, we stated the requisites of finality as follows:
For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.
An appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith.
Id. at 37, 598 S.W.2d at 87 (quoting Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967)). In order for a judgment to be final, the action of the court must finally determine a claim. Id. at 39, 598 S.W.2d at 88. We held that the filing of the motion was nothing more than a request for the trial court to make a preliminary declaration of law, making it nothing more than an interlocutory order. Id. at 38, 598 S.W.2d at 88.
The record before us does not show that there has been a final disposition of this claim. In his reply brief, appellant Vanderpool states that he and Kaiko entered into a negotiated settlement and that “a sum of money has been paid by Kaiko tendering a check made out to Vanderpool and Fidelity.” However, there is no evidence of a settlement in either the abstract or the record. It is incumbent upon an appellant to bring up a record sufficient for the court’s review. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 132 (1994). Thus, we dismiss for lack of a final judgment.
Appeal dismissed.
Glaze, J., not participating. | [
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Per Curiam.
Nine defendants have appealed a judgment
obtained against them by Harvest Foods, Inc., in October of 1994. Harvest Foods has moved to dismiss the appeals of three of those parties, i.e., Donald B. Pennington, Billy J. Armstrong, and Service Brokerage Co., because their trial records were not filed in a timely manner. We agree. The Motion to Dismiss is granted.
The procedural history of this case is as follows:
October 25, 1994 Judgment entered after trial.
November 4, 1994 Pennington files Motions for New Trial and JNOV; Armstrong and Service Brokerage file Motions for New Trial
November 7, 1994 Other defendants file Motions for post-judgment relief; Armstrong and Service Brokerage file Motion for Remittitur.
December 7, 1994 Trial Court enters order denying all of the post-judgment motions filed by all defendants.
December 15, 1994 Pennington files Notice of Appeal
December 19, 1994 Armstrong and Service Brokerage file Notices of Appeal.
December 29, 1994 Oldner files Notice of Appeal
February 17, 1995 All defendants jointly move for seven-month extension pursuant to Rule 5(b). Motion specifies that extension until July 7, 1995 is desired.
February 22, 1995 Trial Court enters order granting the extension, but does not specify a date.
July 7, 1995 Record is filed.
Harvest Foods argues that, according to A.R.A.P. 4(c), the post-judgment motions filed by Mr. Pennington, Mr. Armstrong, and Service Brokerage were deemed denied on December 4, 1994. Accordingly, their seven-month extension to file their records could only last until July 5, 1995. In response, Mr. Pennington argues that the seven-month extension did not'begin to run until December 7, 1994, because on that date, the Trial Court disposed of the last of the post-judgment motions that were filed in the case. Likewise, Mr. Armstrong and Service Brokerage contend that their time to file the record should also be computed from December 7, 1994, because the order that was entered on that date, which effectively denied their Motion for Remittitur, was an order that was contemplated by A.R.A.P. 5(b).
Rules 4(b) and 5(b) of the Arkansas Rules of Appellate Procedure clearly indicate the interplay between the filing of post-judgment motions and the correct time for filing the record on appeal after a seven-month extension has been granted. Although these rules provide for extensions in both filing the notice of appeal and filing the record that is designated therein, their applicability is limited by the type of post-judgment motions that are filed. In particular, Rule 4(b) provides that the time for filing the notice of appeal shall be extended upon the filing of a judgment notwithstanding the verdict, a motion to amend the court’s findings of fact or to make additional findings, or of a motion for a new trial. Moreover, Rule 4(c) provides that if one of these motions is filed in a timely manner, the time for appeal for all parties shall run from the entry of an order disposing of the motion. However, if no such order is entered within 30 days of the filing of the motion, the motion will be deemed denied as of the 30th day. Similarly, the seven-month extension for filing the record in Rule 5(b) is unequivocally linked to the disposition of the motions listed in Rule 4(b): “In no event shall the time be extended more than seven months from the date of the entry of the judgment, decree or order, or from the date on which a timely post-judgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later.”
In this case, the motions filed by Mr. Pennington, Mr. Armstrong, and Service Brokerage on November 7, 1994, are listed in Rule 4(b). However, according to Rule 4(c), they were “deemed denied” on December 4, 1994. Therefore, each of these parties had until July 5, 1995 in which to file their record. Although Mr. Armstrong and Service Brokerage filed Motions for Remittitur, they cannot claim December 7, 1994, as the starting date for their seven-month extension because such a motion is not contemplated by Rule 4(b).
Mr. Armstrong and Service Brokerage point out that Rule 4(c) permits all parties to file their notice of appeal after the post-judgment motions of only one of them have been disposed of, and they argue that this principle should carry over to Rule 5(b) regarding each party’s filing of the record on appeal. In other words, their argument is that if all parties can proceed from the same date in filing their notices of appeal, they should be able to do so when they seek a seven-month extension in which to file their records. That is not what the rules provide.
The procedural history of this case clearly indicates that Mr. Armstrong and Service Brokerage filed their record on July 7, 1995, the date which they believed, despite the clear language of our rules to the contrary, to be the last day of their seven-month extension. The language in Rule 4(c) to which they refer in their argument was meant to eliminate confusion over whether litigants in a multiple party action, in filing their notice of appeal, must proceed from the date of the judgment or the date upon which a post-judgment motion is disposed of. Because of the discretion each party has in designating the record on appeal, the same interpretation need not be given to Rule 5(b).
Motion granted. In addition, we note that Harvest Foods has filed a motion to stay its brief time regarding these appeals. Since we are dismissing the appeals, Harvest Foods’ request is now moot.
Jesson, C.J., Brown and Roaf, JJ., dissent.
Bradley D. Jesson, Chief Justice.
I disagree with the court’s decision in this case from both a practical standpoint and a legal standpoint.
Legally speaking, our ruling has the effect of depriving certain appellants in a multi-party case of the full seven-month period for filing the record, as allowed by ARAP Rule 5(b). For example, if a “timely” record had been filed in this case, in accordance with our Per Curiam, those appellants other than Pennington, Armstrong and Service Brokerage would have been required to file the record two days short of the seven-month period. There is, after all, only one record.
In this particular case, two sets of defendants filed post trial motions, following an October 25 judgment. Pennington, Armstrong and Service Brokerage filed their motion on November 4. It was deemed denied December 4. The other defendants filed a post-trial motion on November 7. In our conference, there was some confusion as to the timeliness of this motion. It was in fact timely, having been filed nine business days after the judgment. When the time period for filing is less than eleven days, weekends and holidays are not counted in the computation. ARCP Rule 6(a). So, this timely post-trial motion was denied by court order on December 7.
By the precise wording of ARAP 5(b), at least some defendants had until July 7 to file the record. Again, I point out, there is only one record in this case. The Per Curiam refers to the record to be filed by Pennington, Armstrong and Service Brokerage as “their record,” but that is misleading. There is not a separate record for each appellant.
In order that all appellants be accorded the full time extensions available to them, the record should be due on the latest date it is due for any one appellant, rather than the earliest. Our rules make such a provision for a multi-party situation in the filing of a notice of appeal. ARAP Rule 4(c). It was certainly reasonable for Pennington, Armstrong and Service Brokerage to infer that the same philosophy would apply with regard to filing the record, especially since there is no explicit provision in our rule governing this issue.
From a practical standpoint, I disagree with the harsh sanction of dismissal that has been imposed on three appellants. Despite the Per Curiam’s implication that our rules are clear in a case like this one, there is in fact no rule that addresses timeliness of the record filing in a multi-party situation. Additionally, this is the first time we have been called upon to interpret our rule in this regard. The record reflects that the parties have made a good faith effort to comply with our time requirements. Their late filing, if any, was not due to mistake, negligence, miscalculation or inadvertence, but to a very understandable interpretation of our rules. Unfortunately, this court has not agreed with that interpretation.
I would deny the motion to dismiss.
Brown and Roaf, JJ., join in this dissent. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Timothy Oliver, was convicted of two counts of capital murder and sentenced to life without parole. On appeal, he asserts three points of error: (1) the trial court erred in refusing to hear all the evidence for his motion to suppress hearing and in admitting his confession into evidence when he could not have knowingly, voluntarily, and intelligently waived his constitutional rights; (2) the trial court erred in admitting his confession because it was the fruit of an unlawful arrest; and (3) jury misconduct, of which he was unaware until after trial, prejudiced his chances for a fair trial. We find no merit to his arguments and affirm.
On March 24, 1992, the bodies of Bobby and Charlene Friend were discovered in the bedroom of their home in DeQueen, Arkansas. Both husband and wife were victims of bludgeoning and multiple stab wounds. The Arkansas State Police attempted to locate the couple’s adopted son, Michael, to inform him of the event. Charlene Friend’s car, a silver Dodge Conquest, was missing from the residence and was later located in Hot Springs at a home where George Rhoades, a friend of Michael’s, was living. At approximately 3:00 a.m. on March 25, 1992, Investigator Hayes McWhirter of the State Police stopped Rhoades and the appellant, Timothy Oliver, age fifteen, in Hot Springs. Both boys voluntarily went to the Hot Springs Police Department, where Oliver initially told McWhirter that he did not know where the city of DeQueen was located. A short while later, in the presence of his mother, Oliver gave the following statement in the absence of Miranda warnings:
This is taken at 4 a.m. in the Hot Springs Police Department. On Saturday afternoon (March 21, 1992) around 5 p.m., me, Mike Friend, Mo-Jo (George Rhoades) and Ricky Dawson were in Mo-Jo’s truck and went to DeQueen and the first place we stopped was at the skating rink. I went in to skate, Ricky was outside and Mo-Jo, or George, took Mike home. He was gone about 30 minutes. Mo-Jo came in and started skating. We got ready to leave the skating rink around 11 p.m. When I got outside, Mike was in the silver car. Me, Mo-Jo, Vickie and James Watson who lives in DeQueen went to the Pizza Hut. Mike wasn’t with us. We ate pizza and had told Mike to meet us at the gas station. We met Mike at the gas station at DeQueen. We followed Mike back to Hot Springs. He was driving the silver car. He turned off when we got to Hot Springs. We saw Mike Sunday afternoon and he spent the night at Mo-Jo’s house Sunday night.
Oliver signed this statement and left the police station shortly after the interview. Later on the same date, Friend confessed to the double homicide of his parents and also implicated his three friends, Oliver, Rhoades, and Ricky Dawson. Oliver was arrested pursuant to a warrant the next day, March 26, 1992. After being verbally advised of his Miranda rights and signing a waiver-of-rights form, Oliver gave a detailed confession to police, which included the following:
Sometime back, Mike Friend talked to me, Mo-Jo, George Rhoades, and Ricky Dawson about wanting to kill his dad, Mike’s dad. Mike has talked to all of us at different times about how to kill his step-father, Bobby. We have talked about using poison and shooting him. Friday night, 3/20 of ’92, we were at George’s house talking about going to DeQueen Saturday night. Saturday afternoon we were at George’s house. We talked about how we were going to kill him and what everyone was going to use. I decided I would use the ball bat, George would use some type of two-bladed knife, sharp on both sides. Ricky was going to use a large stick about the length of a baseball bat and Mike was going to be using an aluminum sword, a practice sword. It was only sharp on the end. We all loaded up in George’s truck and went to DeQueen. We hadn’t been smoking or using any drugs or drinking. We got to DeQueen, and me and George got out at the skating rink. Mike and Ricky were in the truck riding around. Around 11 p.m., Mike and Ricky picked me and George up. We all went to Pizza Hut and had a pizza. After we left the Pizza Hut, we went straight to Mike’s house. On the way out there, Mike told everyone what he wanted them to do. Mike had already told us in Hot Springs that his father had 3,000 dollars in his billfold, and that he would split the money with us to help him kill his dad. Mike told us he would go in the house first because he knew his dad had a gun under the mattress and would keep him from getting it. Mike went in the house first, then George, then me, and Ricky last. Mike went to his father’s side of the bed. I was behind Mike. George was at the end of the bed by his moth er’s side, and Ricky at the end of the bed. Ricky turned the light on and Mike started stabbing Dad as fast as he could. The end of the sword bent. His dad raised up and I hit him in the left side of the head above his eye. Mike took the bat from me and hit his dad in the head. I got the bat back and hit him in the head three more times while his head was laying on the nightstand. Ricky took the bat from me and hit the lady with it. She was face down when Ricky hit her. George hit the man in the head with the bat also before Ricky took the bat. I saw Ricky hit the lady twice with the bat. I guess George cut her throat because he had talked about it before we got to the house, and he had the razor blade or whatever it was. Mike was screaming at his dad. I guess he was cussing him out. Mike told Mo-Jo to hand him his. mother’s purse. Mike got the keys to the Chrysler out and some money. Mike already had some money in his hand from his dad’s billfold. We then went to the front room, living room, Mike knocked the end table over and I knocked the VCR off the T.V. Me and Ricky ran down to the truck. I forgot to tell you earlier that we parked the truck down the road when we first got there and walked to the house. This way no one would see the truck at Mike’s house. Mike and George ran around the side of the house for something, then I saw the headlights come on in the silver Conquest car. Mike flagged us down and told us to follow them to the gas station. I think we went to the gas station at the four way stop in DeQueen. When George got out of the car, he had changed pants. He had on a pair of shorts. While he was in the house, he had on long pants. Between DeQueen and Hot Springs we pulled over and threw everything in the woods. We threw the broken stick, sword, razor blade, and George’s gloves in the woods. Everything is on the right hand side of the highway. I forgot to tell you, George had on a pair of gloves while he was in the house. We all then went back to Hot Springs to George’s house. We didn’t talk about it because every time it was mentioned, someone would say not talk about it. I know the baseball bat is at George’s house. It is black with a brown handle. Later Sunday, we talked about how everyone did what. Mike said he was sorry that there wasn’t any money. We said that we would say nothing to no one. Mike said if we got caught he would take the blame.
Oliver filed a motion to suppress both statements. Following a Denno hearing, the trial court suppressed the first statement, but held the second statement was admissible. Prior to trial, the trial court ruled that the State was prohibited from seeking the death penalty under Thompson v. Oklahoma, 487 U.S. 815 (1988), as Oliver was less than sixteen years of age at the time of the commission of the offense. At trial, Oliver was found guilty of two counts of capital murder and sentenced to life without parole. While Oliver filed a motion for new trial, neither the abstract nor the record reflects whether the trial court ruled on the motion. Oliver filed a timely notice of appeal.
I. Admission of confession
Oliver asserts that the trial court erred in refusing to hear the testimony of his expert, Dr. Douglas Stephens, at a proposed re-opened Denno hearing. The original Denno hearing was held on May 17, 1993. After hearing testimony of all the witnesses, the trial court denied the motion to suppress. However, at the request of Oliver’s counsel, the trial court agreed to reopen the hearing to permit Oliver to present the testimony of Dr. Stephens, who was absent from the scheduled hearing. One month after the original hearing, Oliver’s counsel sent a letter to the trial court, in which she enclosed Dr. Stephens’s report.
On the first day of trial, June 21, 1993, during the prosecutor’s opening statement, Oliver’s counsel realized that the trial court had not yet reopened the suppression hearing, and approached the bench. Due to the fact that Investigator McWhirter, whom Oliver’s counsel needed present for the hearing, had been released for the day, the trial court agreed to recess for the day and hold a re-opened Denno hearing the following morning. The trial court instructed the parties:
I want the lawyers here by 8:30. I may be five minutes late. We are usually here by 8:35. We have had a lot of people tardy today and it delays everything, so I want y’all to put your watches on tonight and be here on time so we won’t have so many delays and we won’t have to look for you between every break. Does everybody understand that? Let’s get started at 8:30 in the morning. Somebody tell Officer McWhirter to be here at 8:30 in the morning.
According to counsel for Oliver, she arrived around 8:45 a.m. the following morning. The record indicates that the trial court conducted an in camera hearing at 8:55 a.m. Noting that counsel had been late for every hearing the preceding day, the trial court held her in contempt, fined her $100.00, and refused to allow Oliver to reopen the Denno hearing to present the testimony of Dr. Stephens.
The trial court’s refusal to reopen the hearing can be likened to a denial of a motion for continuance. Failure to exercise due diligence alone can be the basis to deny a motion for continuance. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). Arkansas Criminal Procedure Rule 27.3 provides for a grant of a continuance “only upon a showing of good cause”; the denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. Id.
The State incorrectly asserts in its brief that even if the trial court’s decision in disallowing Oliver to reopen the hearing constituted an abuse of discretion, any error was harmless, as the testimony of Dr. Stephens was admitted during his casein-chief. While it is true that the jury was able to hear Dr. Stephens’s testimony that Oliver had a mental age of 12, an IQ of 74, and that his abilities to premeditate and to weigh the consequences of his actions were limited, the admission of this testimony at trial would not remedy the failure to admit this testimony at the Denno hearing. We need not reach this issue, however, as we cannot conclude, in light of the facts before us, that the trial court committed error under the circumstances. In light of counsel for Oliver’s tardiness and lack of diligence in offering Dr. Stephens as a witness, we hold that the trial court’s refusal to reopen the suppression hearing during the trial did not constitute an abuse of discretion.
Oliver further asserts that the trial court erred in admitting his confession when he could not have knowingly, voluntarily, and intelligently waived his constitutional rights. When reviewing the voluntariness of confessions, we make an inde pendent determination based on the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). In determining whether a confession was voluntary, we consider the following factors: “age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment.” Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), quoting Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984).
Two factors are pertinent when considering the totality of the circumstances: (1) the statements made by the interrogating officer, and (2) the vulnerability of the defendant. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), citing Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Oliver concedes that, with regard to the first factor, the statements made by Investigator McWhirter, little weighs in his favor, as the officer made no threats or promises to Oliver in exchange for his statement. McWhirter merely informed Oliver that the other defendants who had been arrested were making statements, and inquired as to whether Oliver wished to make a statement as well. In contrast, Oliver asserts that the second factor, his vulnerability, precluded him from making a knowing and intelligent waiver of his constitutional rights.
Oliver was fifteen years old at the time of his arrest and subsequent confession. Although youth is a factor, it alone is not a sufficient reason to exclude a confession. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). See also Smith v. State, supra; Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). While officers contacted Oliver’s mother to be present during his first statement, she was not present during his second incriminating statement. We have recognized, however, that “[a] minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult.” Douglas v. State, supra, citing Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969).
Oliver also claims that his intelligence level made comprehension of his Miranda rights impossible. There was evidence presented at trial that, at the time of his confession, he was in the seventh grade after having failed three grades, and had a second-grade reading level, an IQ as low as 74, and a mental age of a twelve-year-old. We have held many times that a low intelligence quotient, in and of itself, will not render a waiver of rights involuntary where the evidence shows the waiver was knowing and voluntary. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993).
At the Denno hearing, Detectives Terry Threadgill and Jerry Cotton of the Hot Springs Police Department both testified that they verbally advised Oliver of his rights at the scene of his arrest. Investigator McWhirter testified that, prior to his March 26 interview of Oliver, he explained the waiver-of-rights form to him, and Oliver appeared to understand it. McWhirter and Little River County Chief Deputy Ken Sutton witnessed Oliver initial each response and sign the bottom of the form. McWhirter testified he was aware that Oliver was fifteen years old and in the seventh grade, but that Oliver told him that he could read and write. McWhirter listened as Oliver related his version of the murders, then handwrote a statement as Oliver repeated the story. McWhirter then gave the written statement to Oliver to read. At the end of the statement, Oliver had McWhirter add the following change to the end of the statement, “The razor is on the left side of the road.” In contrast, the statement had earlier indicated that the razorblades and other evidence had been thrown on the right side of the highway.
While no experts testified at the Denno hearing, Oliver’s aunt, Kimberly Hill, testified that Oliver read on a fourth- or fifth-grade level, and had failed the first, third, and fifth grades. She reviewed the written confession and concluded that it “didn’t sound like Tim.” Additionally, she described her nephew as capable of being influenced very easily.
At the conclusion of the testimony, the trial court denied the motion to suppress the March 26 statement, finding that:
I don’t think there’s any doubt he was a little slow, but it’s obvious from the first statement he gave that he was smart enough to know that he didn’t want to be implicated in this murder. Just because he is a little slow doesn’t mean he doesn’t have enough sense to understand all of his rights and what he was doing. I find that that second statement was proper in all regards and is (sic) admissible.
When reviewing the totality of the circumstances, we hold that the trial court’s decision was not clearly erroneous.
II. Fruit of unlawful arrest
For his second assignment of error, Oliver asserts that his confession was the fruit of Michael Friend’s illegal arrest, see Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), and, thus, the trial court erred in admitting his statements. In response, the State asserts that Oliver lacks standing to raise Friend’s illegal arrest and subsequent tainted confession. We can easily dispose of this point of appeal, as Oliver did not raise this argument in his motion to suppress. We rejected a similar argument raised by George Rhoades in a companion case. In Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994), we said:
the State contends that Rhoades has no standing to raise Michael Friend’s tainted statement due to a violation of Friend’s Fourth Amendment rights. We will not address the argument of an arrest tainted by Friend’s statement, however, because the argument of an arrest tainted by Friend’s statement was not made to the trial court as part of Rhoades’s motions to suppress. The two motions filed sought to suppress Rhoades’s statements on the basis that it resulted from an arrest without “probable cause” and due to Miranda deficiencies. No mention of a tainted statement from Michael Friend is made and no argument to that effect exists in the record. It is well established that we will not address issues raised for the first time on appeal.
319 Ark. at 49-50, 888 S.W.2d at 657. (Citations omitted.)
In Oliver’s motion to suppress, he asserted that (1) his interrogation on March 25, 1992, followed his illegal arrest without probable cause; (2) officers did not read him his Miranda rights; (3) he did not knowingly, intelligently or voluntarily waive his constitutional rights; (4) he was denied his Sixth Amendment right to counsel; and (5) any statement taken during custodial interrogation was the result of coercion, physical intimidation, and/or unauthorized promises of leniency by police. As was the case in Rhoades, Oliver made no mention of a tainted statement from Michael Friend in his motion to suppress, and no argument to that effect exists in the record. Thus, we cannot address Oliver’s second argument on appeal.
III. New trial — improper contact between trial judge and jurors
For his final point on appeal, Oliver asserts that jury misconduct, of which his attorney was unaware until after the jury had returned its verdict, prejudiced his chances for a fair trial. Following his judgment and commitment on June 28, 1993, Oliver filed a motion for new trial on July 23, 1993. Attached to this motion were the affidavits of Sherrel Hibbs and Kimberly Hill, each of whom had testified on Oliver’s behalf at trial. According to Hibbs, during a trial lunch break on June 24, 1993, she was seated at a restaurant with Oliver’s aunt, Kim Hill, and his mother and step-father, Linda and Jack Echols, when she overheard a conversation between the trial judge, Honorable Ted Capeheart, his court reporter, Pat Motes, and a Texarkana Gazette reporter. According to Hibbs, the trial judge stated to the court reporter and the newspaper reporter, “I fined her,” to which the court reporter replied, “But she was late, judge.” The trial judge then mentioned something about a photograph of Charlene Friend with her throat cut. Seated at an adjacent table were two jurors and an unidentified woman. Also seated at a table to the left of the trial judge’s table were three other jurors and an unidentified person. One of the jurors responded to the trial judge’s comment about the photograph, stating, “But it’s circumstantial, judge.” At this point, according to Hibbs, everyone in the whole area began laughing. She and Oliver’s family then left the restaurant. Hill’s affidavit related similar information.
The record reflects the trial judge, by letter dated August 9, 1993, set the motion for hearing on September 13, 1993. Also included in the record are subpoenas issued by the circuit clerk’s office on September 8 and 10, for the following witnesses to appear for the September 13 hearing: Carolyn Smith, juror James Best, court reporter Pat Waldrop, affiant Sherrel Hibbs, affiant Kimberly Hill, and James Bischof of the Texarkana Gazette. The record also contains an order from the trial judge commanding the Sevier County Sheriff’s Office to pick up Oliver from the Department of Correction for the purpose of the September 13 hearing. On September 10, 1993, Oliver filed amended and second amended motions for new trial. The record does not indicate whether the September 13 hearing was ever held. Oliver filed a timely notice of appeal on September 15, 1993, as the amended motions “related back” to the date of filing the original motion. See Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995).
Oliver asserts, as he did in his new trial motion, that his case falls under an exception to the general rule that errors raised for the first time on appeal will not be considered. In support of his argument, he cites Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). As reviewed in Hughes, the very narrow exceptions to this court’s general rule that it will not consider errors raised for the first time on appeal were set out in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). They are: (1) death-penalty cases where prejudice is conclusively shown by the record and the court would unquestionably require the trial court to grant relief under Ark. R. Crim. R 37; (2) where error is made by the trial judge without knowledge of defense counsel; (3) where the trial court should intervene on its own motion to correct a serious error; and (4) where evidentiary errors affect a defendant’s substantial rights although they were not brought to the court’s attention. Oliver maintains the second exception applies in this instance. Additionally, we require that a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial. See Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). While Oliver’s attorney submitted an affidavit with the motion for new trial, the affidavit related to the issue of whether the trial court erred in refusing to reopen the Denno hearing. She did not state in the affidavit when she first learned of the alleged improper conduct of the trial judge and certain jurors. However, in the motion for new trial, Oliver does assert that his attorney was unaware of the misconduct until after the jury had returned its verdict, and thus had no opportunity to file an objection with the trial court.
Suffice it to say, it would have been highly improper for the trial judge and jurors to have engaged in such discussions. However, mere allegations contained within pleadings are not evidence from which we can determine whether error occurred. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987). While Oliver asserts in his brief that no hearing was ever held, we cannot determine from the record before us whether the scheduled hearing took place or not. If the hearing did not take place, then why not? These significant questions have no answers in the record. As the moving party, it was Oliver’s burden to obtain a ruling on his motion for new trial. See Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). He did not. Under these circumstances, we cannot reach the merits of Oliver’s argument.
IV Compliance with Ark. Sup. Ct. R. 4-3(h)
As Oliver received a sentence of life imprisonment without parole, we must examine all objections decided adversely to him. See Ark. Sup. Ct. R. 4-3(h). Prior to trial, Oliver filed a motion for change of venue. The trial court denied the motion.
A change of venue should be granted only where it is clearly shown that a fair trial is not likely to be had in the county. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992), citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). We will not reverse a trial court’s decision denying a change of venue unless an abuse of discretion is shown. Id. Oliver did not file accompanying affidavits from county residents stating that he could not receive a fair trial. It was Oliver’s burden to prove that a change of venue was necessary, and he failed to meet that burden. Moreover, Oliver did not exhaust all twelve of his peremptory challenges prior to the seating of the jury and therefore has not demonstrated prejudice. Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993). Thus, we cannot say that the trial court abused its discretion in denying the motion.
We have examined the record and find that there are no erroneous rulings adverse to Oliver that cause reversal.
Affirmed.
We affirmed the trial court’s denial to transfer Oliver’s case to juvenile court in Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993). | [
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Per Curiam.
After being convicted of aggravated assault, appellant Thomas F. Story petitioned the Searcy County Circuit Court to return bond money allegedly posted on his behalf by a party who was allegedly reimbursed by Mr. Thomas. The petition was denied, and Mr. Story appealed.
In response to a contention by Mr. Story that the record of proceedings concerning the return of the bond money was incomplete, we remanded the case to the Trial Court on June 26, 1995, to settle the record. The State has moved to dismiss the appeal because no action to settle the record has been taken by the Trial Court.
Mr. Story has moved to disqualify Circuit Judge David Reynolds, claiming the delay is the result of bias. He also asks that the record include transcripts of a hearing held by Judge Reynolds on July 15, 1995, and a telephone conference with Judge Reynolds which occurred on July 17, 1995, each of which concerned the issue at hand.
The Searcy County Circuit Court is ordered to present to this Court within 30 days the settled record in this matter, to include transcripts of any recorded hearing or recorded hearing by telephone conference concerning this case and which occurred on July 15 or July 17, 1995.
The State’s motion to dismiss the appeal is denied. Mr. Story’s motion to disqualify Judge Reynolds is denied without prejudice. | [
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Robert L. Brown, Justice.
Appellant Roy Chaisson appeals from part of an order which (1) grants appellee Annette Ragsdale a setoff against the child support award for a debt she paid following the divorce, and (2) grants visitation rights. Annette Ragsdale did not file an appellee’s brief. We reverse that part of the chancellor’s order which grants the setoff and visitation rights.
On May 2, 1982, Roy Chaisson and Annette Chaisson (now Ragsdale) were married. Two children, William Roy Chaisson and David Scott Chaisson, were born of that marriage. On October 6, 1988, the couple divorced in New Jersey. The New Jersey divorce decree awarded full custody of the two children to Annette Chaisson, with visitation rights granted to Roy Chaisson. Under the decree, Roy Chaisson was to pay $100.00 a week in child support to Annette Chaisson. He was further ordered to pay certain debts of the marriage, including payment of a loan owed to Atlantic Financial Company. That debt was later sold to Chase Manhattan Bank. Several months after the couple was divorced, Roy Chaisson filed for Chapter 7 bankruptcy. As a result of the bankruptcy, all of his debts, including the Chase Manhattan debt, were discharged. Chase Manhattan later pursued Annette Ragsdale for payment of the debt.
In July 1989, the two Chaisson boys went to visit their father in Mississippi where he now resides. Annette Ragsdale had become disabled due to a dislocated disk in her back, and because of her disability she and Ron Chaisson agreed that the boys would stay with their father. In March of 1990, Roy Chaisson filed a motion in Mississippi to modify the New Jersey divorce decree and requested that custody of the two children be placed in him and that his payment of child support be terminated. On April 6, 1990, he was awarded full custody of the two children by the chancery court in Mississippi, and his payment of child support was halted.
On November 3, 1993, Roy Chaisson, as a resident of Mississippi, filed a uniform support petition in Arkansas and requested that Annette Ragsdale, who had moved to Camden, pay him child support for their son William. (The second son, Scott, had been placed in an institution in Mississippi and was covered by Social Security.) Annette Ragsdale answered the petition and affirmatively pled the defense of setoff.
Two hearings were held on the matter. At the first hearing, Annette Ragsdale testified that after Roy Chaisson took bankruptcy, Chase Manhattan pursued her for payment of the credit card debt. She introduced into evidence the total amount she paid on that debt of $3,816.51. At the second hearing, Annette Rags-dale requested that visitation be set as well as setoff for the debt paid. The chancellor awarded child support to Roy Chaisson in the amount of $37.50 a week. He further found that Annette Ragsdale was entitled to a setoff in the amount of $3,815.51 due to her payment of the Chase Manhattan debt and, in light of that, he held her payments in abeyance until October 20, 1995. He further granted her visitation rights.
Roy Chaisson raises two points regarding the award of set-off and visitation on appeal. Those points can best be combined and framed this way: did the chancellor exceed his authority under the Uniform Interstate Family Support Act (UIFSA)? Roy Chaisson indicates in his brief that the issue of the chancellor’s subject matter jurisdiction over a debt contained in a New Jersey divorce decree was not raised at the trial level. However, the issue of whether the chancellor had the authority to address setoff and visitation issues in a UIFSA proceeding was clearly raised. Accordingly, we will consider that issue.
Arkansas enacted UIFSA in 1993, and it is codified at Ark. Code Ann. § 9-17-101 et seq. (Repl. 1993). It is manifest from the title of the uniform act, as well as the description of proceedings that may be brought under it, that the enforcement of interstate child support awards is the Act’s purpose and focal point. See Ark. Code Ann. § 9-17-301 (Repl. 1993). The duties and powers of the responding tribunal relate to the goal of enforcing child support orders. See Ark. Code Ann. § 9-17-305 (Repl. 1993). Indeed, the Act specifically prohibits conditioning support orders upon compliance with visitation rights. Ark. Code Ann. § 9-17-305(d) (Repl. 1993). The commentary to § 9-17-305 is even more specific and states that visitation issues should not be litigated in the context of UIFSA proceedings. Comment to Ark. Code Ann. § 9-17-305 (Repl. 1995).
This court has addressed the issue of whether collateral matters are appropriate for consideration when the issue before the chancellor is enforcement of child support under a uniform act. See State v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992); State v. Kerfoot, 308 Ark. 289, 823 S.W.2d 895 (1992); Iowa v. Reynolds, 291 Ark. 488, 725 S.W.2d 847 (1987). In all three cases, the uniform act involved was the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), which was the predecessor act to UIFSA. We held in each case that consideration of collateral matters, whether they be visitation rights or affirmative defenses to liability for child support, was error.
In both State v. Kerfoot, supra, and State v. Robinson, supra, we quoted with approval from Todd v. Pochop, 365 N.W.2d 559 (S.D. 1985), which concerned the purpose behind the Uniform Reciprocal Enforcement of Support Act (URESA):
The very purpose of the URESA requires that it be procedurally and substantively streamlined. Interstate enforcement of support obligations will be impaired if matters of custody, visitation, or a custodial parent’s contempt are considered by the responding court. The introduction of such collateral issues will burden the URESA mechanism. Moreover, permitting the resolution of other family matters in a URESA petition proceeding may deter persons from invoking the URESA.
Todd, 365 N.W.2d at 560.
The same holds true in the case before us. UIFSA actions are not intended to open up for renewed scrutiny all issues arising out of a foreign divorce. The purpose of UIFSA is support of the child and enforcement of the same. Other issues such as visitation and payment of debts under the divorce decree are collateral matters which necessarily burden the child support determination and run counter to the goal of streamlining these proceedings.
The facts in this case are analogous to those considered by the Wyoming Supreme Court in 1986. See Macy v. Macy, 714 P.2d 774 (Wyo. 1986). In Macy, the husband was required to pay child support by the divorce decree, and the wife was required to pay certain marital debts, one of which was a joint credit card debt. The wife later filed for bankruptcy and named her ex-husband as a creditor. The bankruptcy court discharged all the debts listed in the petition, including the joint credit card debt. The trial court held that the husband was entitled to a setoff against ordered child support for the amount of the debt that he was ultimately required to pay after his ex-wife had been discharged. The Wyoming Supreme Court reversed and held that the husband was enjoined from claiming any setoff because the claim of nondischargeability should have been made by him to the bankruptcy court, and there was no indication that he had done so. The Wyoming Supreme Court stated:
[I]t should be mentioned that child support is for the benefit of the children as plaintiff’s obligation to contribute to the upbringing of his children. A support payment is the children’s money administered in trust by defendant for their benefit. When the plaintiff withholds support for the children, he is depriving them. . . . Plaintiff and the trial judge seem to have lost sight of the real purpose of child support.
Macy, 714 P.2d at 777.
The reasoning of the Wyoming Supreme Court concerning setoff is persuasive and dovetails with our endorsed policy of eliminating collateral matters in connection with the enforcement of child support orders under UIFSA. We are aware that the general setoff statute provides that a setoff may be pled “in any action for the recovery of money.” Ark. Code Ann. § 16-63-206 (1987). We do not construe an action for the establishment of child support as an action for the recovery of money.
In sum, we conclude that the authority of the chancellor in considering the UIFSA petition was limited to establishment of child support and its enforcement. Resolution of other matters like setoff and visitation exceeded that authority in the UIFSA context. As we said in State v. Kerfoot, supra, the forum in which to argue about visitation rights is either where the parties obtained their divorce or the forum where the custodial parent and child reside. The order of the chancellor as it pertains to setoff and visitation is reversed, and the matter is remanded for orders consistent with this opinion.
Reversed and remanded.
Annette Chaisson subsequently married Sid Ragsdale on January 16, 1993.
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Andree Layton Roaf, Justice.
Appellant Bonita Willis Witherspoon appeals her conviction for criminal contempt of court in connection with her service as a juror in the capital murder trial of Ledell Lee. She raises two points on appeal: (1) the evidence is insufficient to support the contempt of court conviction and (2) the trial court erred in allowing jurors in the Ledell Lee case to testify regarding jury deliberations. Appellant’s arguments are without merit, and we affirm.
Appellant was seated as a juror on October 3, 1994, for the capital murder trial of Ledell Lee. Judge Chris Piazza declared a mistrial on October 7, 1994, because the jury reported it was deadlocked eleven to one; appellant cast the sole vote for acquittal. On October 13, 1994, the prosecuting attorney filed a motion for contempt in which he alleged that appellant failed to disclose on the jury information sheet that she had a prior felony conviction, failed to disclose, when questioned by counsel and the court, that she possessed independent outside knowledge of the case, including familiarity with the defendant’s family and with witnesses, and failed to disclose that she had been represented in a criminal prosecution by one of Ledell Lee’s defense attorneys, Jerry Sailings. A bench trial was held on December 13, 1994, to determine whether appellant failed to disclose that she possessed independent outside knowledge of this case; the charge of failure to disclose a felony conviction was not pursued at trial. Appellant was found to be in contempt of court and sentenced to ten days imprisonment.
a. Sufficiency of the evidence.
Appellant first argues that the evidence is insufficient to support the contempt of court conviction. At the bench trial, the appellant did not question the sufficiency of the evidence. Consequently, the state asserts appellant has not preserved this issue for appeal. However, it is not necessary for a defendant to challenge the sufficiency of the evidence in a bench trial in order to raise the issue on appeal. See Strickland v State, No. CR 94-879 (November 6, 1995).
In finding the appellant to be in contempt of court, the trial court concluded that “Ms. Witherspoon has defrauded this court.” A criminal contempt citation must be based on evidence showing guilt beyond a reasonable doubt. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). In an appeal of a case of criminal contempt, we view the record in the light most favorable to the decision of the trial judge and sustain that decision if it is supported by substantial evidence. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Finally, decisions as to the credibility of the witnesses are to be made by the trier of fact. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994).
At trial, the juror information sheet which appellant signed prior to her selection as a juror was admitted. It provided: “I do solemnly swear (or affirm) that the statements contained herein are true and that I have given true and perfect answers to the above questions asked touching my qualifications to serve as a grand or petit juror, so help me God.” The oath for new jurors to which appellant was sworn was also introduced and provided: “Do you, and each of you, solemnly swear or affirm, that you will well and truly try each and all of the issues submitted to you as a juror, and a true verdict render, according to the law and the evidence, so help you God?” In addition, a partial transcript of the Ledell Lee trial was admitted. At the Ledell Lee trial, the prospective jurors were asked if anyone knew a “Hubert Anderson from Little Rock.” Appellant did not respond. The jurors were also asked: (1) if they had “read anything, seen anything or heard anything on the radio?” (2) “Is there any reason that you couldn’t give both parties to this case a fair trial?” and (3) “Anybody else know anybody? Anything that would keep you from being here?” Again, appellant did not respond. In addition, the jurors were asked during the trial whether “anybody had been compromised by anything you may have read or heard about this case? ... [H]ave any of you been talked to by a witness or something that would compromise you in any way?” Appellant never responded.
At appellant’s trial, Mr. Hubert Anderson, a private investigator, testified that he had been employed by attorneys representing Ledell Lee. Mr. Anderson stated that he knew appellant because he had dated her sister for about six years. Mr. Anderson testified he saw appellant once every three or four months, and talked with her on the morning of the jury selection for the Ledell Lee trial. Mr. Anderson also stated that he usually goes by the name “Andy,” and appellant refers to him as Andy. He further stated that he did not give appellant any information regarding the Ledell Lee case. Although Anderson was listed as a witness, he did not testify at the Ledell Lee trial.
Mr. Jerry Sailings, one of Ledell Lee’s attorneys, testified that while he was with the public defender’s office he represented appellant on a theft by receiving charge in 1991. He stated that he represented her at a plea and arraignment, September 16, 1991, and at trial, September 23, 1991. Sailings testified he did not recognize appellant when she was called as a juror in the Ledell Lee case.
An alternate juror for the Ledell Lee case testified she saw appellant in the hall talking with an individual who had been on the witness stand and with Ledell Lee’s sister. She testified that she did not hear what was said, and did not report the conversation to court personnel. One of the jurors from the Ledell Lee trial testified that appellant said her brother-in-law was a private investigator and had worked on the Ledell Lee case; the juror further stated: “It seems like she said her brother-in-law told her something about it.”
Another juror testified he saw appellant talking to someone in an office, while Ledell Lee’s sister was in the office. This juror was not sure appellant was talking to Ledell Lee’s sister, because there was a third person in the room. He also stated that after the jury retired to deliberate, appellant indicated “she knew somebody that had investigated the case the first time it was tried.” He stated “I think she said that it was her brother-in-law.” He further testified that on the second day of deliberations, the appellant read a lengthy statement to the other jurors in which she asserted that the justice system was biased and racist, and she wasn’t going to have a part in that, and that officers who participated in the Lee investigation had all been promoted. Finally, he testified that after reading her statement, appellant turned her chair away from the rest of the jurors and began to read a book out loud, which was disruptive to the deliberations.
Another juror testified that after appellant was elected jury foremen she stated that she had worked with one of the prosecutor’s witnesses, a man named McCullough, and questioned why he was at home the day of the murder, and not at work. One juror also testified that appellant stated she had a brother-in-law who worked for one of the defense attorneys, and testified that appellant said she knew the private investigator. Finally, a juror testified she saw appellant talking to a prosecution witness during the trial, and she heard appellant say “Hi. How are you doing?” to Ledell Lee’s brother.
An act is contemptuous if it interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). The inherent power to punish for contempt should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue. Id. The court’s contempt proceedings are to preserve the power and dignity of the court, to punish for disobedience of orders, and to preserve and enforce the rights of the parties. Id. Viewing the evidence in the light most favorable to the decision of the trial judge, we hold the contempt finding is supported by substantial evidence that Ms. Witherspoon had prior knowledge of the case which prevented a fair trial.
b. Testimony of jurors.
Appellant argues that the trial court improperly allowed her fellow jurors to testify concerning statements she made during jury deliberations, contrary to the United States Supreme Court’s holding in Clark v. United States, 289 U.S. 1 (1933), that a prima facie case of juror wrongdoing must first be shown and only then will jury discussions be admissible as corroborative evidence, to supplement and confirm the case that would exist without them. We have recognized that the sanctity of jury deliberations is a fundamental precept of our adversary system. National Bank of Commerce v. HCA Health Ser., 304 Ark. 55, 800 S.W.2d 694 (1990). However, in this instance, the appellant’s argument must fail.
Although the trial court found that a prima facie case had been made from the evidence extraneous to the jury room deliberations, appellant argues that the only extraneous evidence presented was that Mr. Sailings had previously represented her, and thus the jurors could only have testified to show appellant had knowledge of this prior representation. Appellant overlooks the testimony of Hubert Anderson and the testimony of the jurors concerning appellant’s conversations with witnesses and members of the defendant’s family outside the jury room. However, more importantly, the appellant in Clark was convicted in federal district court and the rule enunciated by the Supreme Court in 1933 applied to a proceeding in federal court. We have said that the Arkansas Rules of Evidence govern proceedings in the courts of this state. Ark. R. Evid. 101; See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).
Appellant also asserts the ruling in Clark is consistent with Fed. Rule Evid. 606(b); however, A.R.E. Rule 606(b) is nearly identical to the federal rule and provides:
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. (Emphasis added.)
This rule provides that jurors may testify in an inquiry into the validity of a verdict. Of course, no verdict was reached in the instant case, but we hold that the rule should apply whether a verdict is reached or a mistrial declared. This rule establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to a trial specific personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations. Christopher B. Mueller, 3 Federal Evidence § 249 (2d. ed. 1994); see also Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). This is precisely what occurred in the instant case, and the trial court properly allowed jurors to testify about the statements made by appellant during the course of the deliberations.
The conviction is affirmed.
Glaze and Corbin, JJ., concur, see Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995)(Dudley, Corbin, and Glaze, JJ., concurring). | [
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Robert L. Brown, Justice.
The appellant, Terrick Terrell Nooner, was convicted of capital murder committed in furtherance of a robbery and sentenced to death by lethal injection. He raises 15 points on appeal. We agree with the State that the points have no merit, and we affirm.
On March 16, 1993, at approximately 1:30 a.m., Scot Stobaugh entered the FunWash laundromat on West Markham Street in Little Rock to do laundry. While there, he was shot seven times and died of multiple gunshot wounds. He was found lying face down on the laundromat floor in a pool of blood. Subsequent examination showed that he was shot twice in the upper right arm and five times in the back in what later were described as contact wounds. Seven .22 caliber shell casings were found on the floor close to the body together with a tan hat, keys, and a jar of Carmex lip salve. His Chevrolet Beretta was parked in the laundromat’s parking area unlocked, with its parking lights on, and with keys in the ignition. A ring and a neck band remained on the victim’s body.
The FunWash laundromat had three surveillance cameras in operation at the time of the shooting which recorded on one VHS videotape. The general manager of the business, Janie White, helped investigating police officers from the Little Rock Police Department retrieve the videotape. The videotape depicted Stobaugh and a second person accosting him in the laundromat. It did not show the actual murder.
Detective Joe Oberle, a homicide detective with the Little Rock Police Department, took possession of the videotape and had still photographs made from the frames that included the victim and the suspect. Detective Oberle used several private firms in Little Rock to enhance the tape in order to obtain the clearest still picture possible — Color Masters, Camera Mart, and Jones Productions. In four of the enhanced photographs, the victim’s face was “mosaicked out” at the request of his family and one of those photographs was given to the news media to assist in the investigation. Rick Adcock with the Little Rock Police Department Crime Scene Search Unit also made still photographs from the videotape.
Ron Andrejack, the firearms examiner for the State Crime Laboratory, examined the bullets and shell casings found at the crime scene and determined that five of the seven bullets were fired by the same firearm. The other two bullets were too damaged for any conclusion to be reached. He further determined that all seven shell casings were fired from the same gun. By examining the various marks on the bullets and shell casings, he ultimately concluded that the characteristics on the bullets and shell casings were consistent with a .22 long rifle Ruger semiautomatic pistol.
In a matter of days, the police investigation centered on Nooner due in large part to statements given to Detective Oberle by Antonia “Toni” Kennedy, a friend of Nooner’s. Antonia Kennedy is the sister of Jazmar Kennedy, who identified Nooner in the surveillance photographs at trial, and the sister of Terri Kennedy, who was Nooner’s girlfriend at the time of the trial and who testified as a defense witness. Antonia Kennedy implicated Nooner in the FunWash shooting and subsequently testified at trial that on the morning after the shooting Nooner told her that he had murdered Scot Stobaugh after demanding money from him. She added that she had seen Nooner with a .22 Ruger pistol that day and had kept the gun for Nooner for a brief period of time. Nooner was arrested on April 23, 1993, and charged with capital murder, aggravated robbery, and theft of property.
On September 20, 1993, a seven-day trial commenced. Nooner was convicted of capital felony murder with aggravated robbery and theft of property as the underlying felonies. After the penalty phase of the trial, the jury found two aggravating circumstances: (1) that Nooner had previously committed another felony, an element of which was the use or threat of violence; and (2) that the murder was committed for pecuniary gain. The jury found no mitigating circumstances and returned a verdict of death by lethal injection.
I. JUROR DISMISSED FOR CAUSE
Nooner first contends that the trial court erred in removing a juror for cause based on her attitude toward the death penalty. Citing Witherspoon v. Illinois, 391 U.S. 510 (1968), Nooner urges that this juror was struck due to her conscientious scruples against the death penalty rather than her total opposition to it, which violated his right to due process.
During the voir dire examination, juror Elizabeth Miller was questioned by counsel and by the circuit court. Her responses to the State’s questions on voir dire were as follows:
PROSECUTOR: Is the fact that the death penalty is sitting out here if you find him guilty going to cause you to make me have to do more than that? Have to prove beyond all shadow of a doubt or all imaginary doubt that he’s guilty?
JUROR: Yes.
PROSECUTOR: It is?
JUROR: Uh huh (Meaning yes).
PROSECUTOR: So, in other words, you would hold us to that higher standard?
JUROR: Yes.
PROSECUTOR: In a case like this there are two possible sentences. If you, the jury, would render a guilty verdict, there are only two sentences. One is life imprisonment without parole. That’s one option, and the other is the death penalty. Do you feel that if you have those two choices before you, that you would be inclined to lean toward life imprisonment?
JUROR: Yes.
PROSECUTOR: If you had those choices before you, would you automatically feel that the life imprison ment without parole would be your choice?
JUROR: Yes, Ido.
PROSECUTOR: So, in other words, regardless of the evidence that we presented to you that might suggest that the death penalty is appropriate, it’s your belief that you would — If you were a juror, you would vote for life imprisonment without parole?
JUROR: Yes, uh-huh (Meaning yes).
Ms. Miller’s responses to the defense counsel’s questions were as follows:
DEFENSE COUNSEL: If you determine that they’re guilty, then you consider punishment. The Court will instruct you that in order to consider the death penalty, the State has to prove certain aggravating circumstances and prove that those aggravating circumstances outweigh any mitigating circumstances that may exist beyond a reasonable doubt.
JUROR: I understand.
DEFENSE COUNSEL: If the Judge instructed you that that was the law, and those were the instructions you were supposed to follow, could you follow those instructions?
JUROR: I think so.
DEFENSE COUNSEL: And you can follow his instructions and consider everything that you should consider in making your determination which punishment is possible or which punishment is appropriate?
JUROR: Yes.
DEFENSE COUNSEL: If the Judge instructs you that the State has the burden of proving each and every element of the charges against Terrick beyond a reason able doubt, and he further instructs you that a reasonable doubt isn’t any possible or imaginary doubt. It’s a doubt that would cause a reasonable person to pause or hesitate in one of the grave transactions of life. And, further, that a juror is convinced beyond a reasonable doubt when they have an abiding conviction of the truth of the matter. Could you follow that instruction?
JUROR: I think so.
On requestioning by the State, the juror answered:
PROSECUTOR: You really don’t want to have to ever be the person who would have to vote on whether or not you could sentence somebody to death. Is that correct?
JUROR: That’s right.
PROSECUTOR: Would it be really difficult for you? Do you think you could actually sign your name to a verdict form?
JUROR: No, I don’t think so.
Upon questioning by the circuit court, the juror stated:
CIRCUIT COURT: Can you conceive of any circumstances where you had a choice between life without parole and the death penalty where you would choose the death penalty?
JUROR: I don’t know.
The circuit court then issued its ruling:
After viewing this juror, she said several things that were a bit inconsistent. Taking an overall view of all of her questions, I’m convinced that if this lady is part of this jury, that the State would be foreclosed from a verdict before we start. I believe this lady is irrevocably locked into voting for life without parole, and because of that would not follow the evidence, and so, I’m going to grant the State’s motion for cause as to this juror.
The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). We have said that the standard for determining if a prospective juror should be excused for cause is no longer whether that person makes it unmistakably clear that he or she would automatically vote against the death penalty. Pickens v. State, 301 Ark. 244, 250, 783 S.W.2d 341, cert. denied 497 U.S. 1010, cert. denied 500 U.S. 929 (1990). The standard now is whether a juror’s views about the death penalty would prevent, or substantially impair, the performance of the juror’s duties in accordance with the instructions and the oath taken. Pickens v. State, supra. Hence, the circuit court must decide if the juror’s views would prevent or substantially impair performance of his or her duty as a juror, and we give great deference to the circuit court that sees and hears the potential jurors. Wainright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).
Here, it is true that juror Miller testified that she would follow the court’s instructions. However, she also stated that she would have to be “totally convinced” of the defendant’s guilt before she could consider the death penalty and that regardless of the State’s evidence she would vote for life imprisonment. She further responded that she could not actually sign her name to a verdict form in which the death penalty was imposed. A reasonable conclusion from these answers is that her views on the death penalty would in fact have either impaired or prevented the performance of her duties as a juror. We bestow great deference on the circuit court in such matters, and we find no basis for a decision that the court abused its discretion.
II. EVIDENCE OF ROBBERY
For his next point, Nooner contends that there was insufficient evidence of robbery as the predicate felony for capital murder. He argues that the victim’s car was not taken and that the body was found with personal jewelry still intact.
The evidence of the robbery in this case is circum stantial, but circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Trimble v. State, supra; Sheridan v. State, supra; Bennett v. State, supra. In assessing whether evidence is substantial, we view the facts in the light most favorable to the appellee. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Trimble v. State, supra.
We disagree that the proof of robbery was insufficient. Items on the floor beside the body, including the keys and Carmex, are some proof that the victim’s pockets had been rifled. More importantly, Toni Kennedy testified that on the morning after the shooting she had seen a checkbook with the name Scot Stobaugh in Nooner’s possession. Added to this proof was the fact that Nooner told Toni Kennedy that he demanded money from the victim at FunWash. Finally, the videotape in the laundromat which was reviewed by the jury shows the victim raising his hands, as the suspect walked behind him. The victim was later found shot to death. The State’s proof meets the test of substantial evidence.
III. DISCOVERY DEFICIENCIES
Nooner next contends that he was denied due process of law because the prosecuting attorney was impermissibly dilatory in providing the names and addresses of state witnesses, the opinion of the expert witness regarding the type of gun involved, autopsy photographs, and a diagram of the laundromat by a crime scene specialist.
Rule 17.l(a)(i) of the Arkansas Rules of Criminal Procedure requires the prosecution to give the names and addresses of witnesses it intends to call at trial, and Rule 19.2 imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). The trial court has four options under Rule 19.7 to remedy a violation of the rules: permit discovery, exclude the undisclosed evidence, grant a continuance, or enter an order as the court deems appropriate under the circumstances. Id. In some instances, a recess to interview the witness is sufficient. Lewis v. State, supra; Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).
On Friday, September 17, 1993, before the trial began on Monday, September 20, 1993, the prosecutor provided this information to the defense attorneys:
• Johnny Martin would testify as to the identity of Nooner in the videotape and photographs.
• Two employees who worked at the Markham Liquor Store next to Fun Wash would testify that Russell Patton, who had been involved in a March 5, 1994 burglary at Fun Wash, was not the man in the videotape or photographs.
• Ron Andrejack would testify that the weapon used was consistent with a .22 Ruger semi-automatic pistol.
• Still photos taken from the videotape of the March 5, 1994 Fun Wash burglary would be introduced.
A diagram of the crime scene by crime scene specialist, Lisa Sakevicious, was not provided to the defense in advance of trial; nor were autopsy photographs.
The circuit court offered opportunities for interviews of witnesses whose names were provided on the Friday before trial commenced and allowed the same opportunity for reports and documentary evidence. The defense interviewed Johnny Martin during the trial before its cross-examination. The court also noted the fact that the defense had had Martin’s name from the prosecutor’s file for several months. With regard to the Markham Liquor Store employees, the circuit court observed that an objection to their testimony was not made until the Thursday after trial commenced —some six days after the defense was apprised of their identity and that they would testify. The circuit court ruled that was sufficient prior notice.
Though Ron Andrejack’s additional conclusion about the .22 Ruger semi-automatic gun was not provided until the Friday before trial, the circuit court stated that the defense had known Andrejack would be a witness for some time and had not interviewed him. In addition, the prosecutor had turned over Andre- jack’s opinion as soon as the prosecutor received it. The court also stated that the autopsy photographs were reasonably anticipated as part of the State Medical Examiner’s testimony, which the defense knew would be forthcoming at trial, and that the crime scene diagram was an instructional aid to the jury.
This court is well aware of the fact that the last minute exchange of evidence before trial is sometimes inevitable as trial preparation is brought to a head and comes to a close. The issue, however, is whether last minute preparation was abused in this matter and used as a ploy or subterfuge to gain advantage over the opposing party. See Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). Stated another way, was there an attempt to conceal discoverable evidence from the defense? We have endowed the trial courts with great discretion over such matters, and the circuit court in this case assessed each assertion of a Rule 17.1(a)(i) violation carefully before making its decisions. The circuit court was reasonable in its resolution of these matters, and we cannot say that it abused its discretion. Moreover, this court does not recognize the doctrine of cumulative error when there is no error to accumulate. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
IV IDENTIFICATION TESTIMONY
Two State witnesses — Johnny Martin and Jazmar Kennedy — testified that it was Nooner in the videotape and photographs. Martin testified that he saw Nooner several hours before the murder and that he was wearing a green jacket and a black-and-orange Miami baseball hat. Jazmar Kennedy testified that she recognized Nooner in the videotape and photographs wearing her sister Terri Kennedy’s green jacket along with his Miami baseball hat. She also knew it was Nooner by his physical appearance, how he stood, and his mouth.
Nooner contended at trial and now on appeal that this testimony invaded the province of the jury, was not helpful to the jury, and was a matter ultimately for the jury to decide. He further urges that this testimony violates the silent witness theory that the videotape speaks for itself. Both this court and the Arkansas Court of Appeals have considered appeals where an identification of the defendant or accomplice was made by a witness from photographs, but neither court has resolved the precise issues raised by Nooner in this appeal. See Young v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1988)(bench trial); Washington v. State, 31 Ark. App. 62, 787 S.W.2d 254 (1990).
This issue turns to a large extent on Rule 701 of the Arkansas Rules of Evidence which limits lay witness opinion testimony to testimony which is rationally based on the perception of the witness and helpful to the determination of a fact issue and an understanding of the testimony. Such opinion testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704. Whether to admit relevant evidence rests in the sound discretion of the trial court, and the standard of review is abuse of discretion. See Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991); Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992).
In this case, the jury had before it the videotape and photographs taken the night of the murder, mug shots of Nooner taken within weeks after the murder, and the presence of Nooner in the courtroom at trial some six months after the murder. At trial, Nooner’s appearance differed from that in the mug shots. He wore glasses, his hair was longer, and he had a moustache.
Nooner argues that neither Martin nor Jazmar Kennedy had adequate knowledge of him so as to be able to make an identification in the videotape and photographs and, thus, satisfy the conditions of Rule 701. We disagree. Jazmar Kennedy had known Nooner for about three years and had seen him regularly. She had even lived in the same apartment with him for a period of time. Martin testified that he had seen Nooner on five or six occasions and had seen him just a few hours before the murder. Both witnesses recognized the jacket and cap in the videotape and photographs and associated the clothing with Nooner. These were special facts otherwise unknown to the jury. The two witnesses then positively identified Nooner as the man with Scot Stobaugh. We hold that these witnesses had ample contact with Nooner to develop opinions based on their perceptions and that the trial court did not abuse its discretion in permitting them to relay their opinions to the jury. See People v. Mixon, 180 Cal. R. 772, 129 Cal. App. 3d 118 (1982).
We next turn to the argument of whether this testimony was helpful to the jury. We believe that it was. The videotape and surveillance photographs are not crystal clear for identification purposes but are somewhat blurred and indistinct. Hence, any testimony from people who had a special familiarity with the suspect would qualify as an aid to the jury. See People v. Mixon, supra; Hardie v. Florida, 513 So.2d 791 (Fla. App. 1987).
In sum, we conclude that the clothing testimony and identification by Martin and Jazmar Kennedy were properly formed opinions based on a reasonable association with Nooner. This conclusion is abetted by the fact that Nooner’s appearance had changed at trial, with the glasses, longer hair, and moustache. As legitimate opinion testimony, the identification by the two witnesses did not violate Rule 704. Finally, we do not view this holding as running contrary to the silent witness theory, as Nooner urges. See Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982) (discussion of the theory). An identification of a person in a surveillance videotape, based upon the viewer’s special familiarity with the person and ample opportunity to observe him, does not vitiate this theory which permits the introduction of surveillance videotape based on context and without a sponsoring witness.
V. ENHANCED PHOTOGRAPHS
Nooner contends that it was error for the circuit court to allow into evidence photographs that had been “manipulated.” He further maintains that because the photographs were “altered,” the silent witness theory should not apply. The State counters that the photographs were not “altered” but were merely “enhanced” by giving more brightness and improving the contrast for better definition, as one does when adjusting a television picture.
We first emphasize that there is nothing before us that indicates that the still photographs of the suspect ultimately introduced into evidence were changed to include a face, features, or physique of someone not present in the original videotape. Indeed, the jury and the circuit court watched a slowed version of the original videotape and then saw the “enhanced” still photographs. Thus, the viewers of the tape had the opportunity to identify any distortion in the photographs of the depicted suspect.
In a pre-trial hearing regarding whether the photographs should be suppressed, state witnesses, including representatives of private firms, meticulously described their role in the enhancement process. Rupert Robertson, a video specialist for Arkansas Power & Light Company, testified that he slowed the original videotape down by making an exact duplicate of it in the Beta-cam format and then freezing each frame for several seconds. Tom Burney of Jones Productions testified that he took a still frame from the duplicate videotape, transferred it to his computer, and softened the pixels on the suspect’s face to remove the graininess. He did not add or subtract features from the original, except to “mosaic out” the victim. Carl Tillery of Color Masters testified that he took the computer disk prepared by Tom Burney and made still photographs. He multiplied the pixels per square inch to improve the contrast and adjusted the brightness in one of the still photographs. He also testified that he in no way altered the features in the photographs. Jeff Bishop from Camera Mart testified that he made still photographs from the original videotape. He only adjusted the brightness in the photographs.
Reliability must be the watchword in determining the admissibility of enhanced videotape and photographs, whether by computer or otherwise. We turn to the treatise cited by the Arkansas Court of Appeals in Fisher v. State, supra:
Relevant computer-enhanced still prints made from videotape recordings are admissible in evidence when they are verified as reliable representations of images recorded on master videotapes.... The master videotape used in producing the computer enhancement should also be admitted in evidence to help determine the reliability of the still picture.
3 C. Scott, Photographic Evidence § 1295 (2d ed. 1969 & Supp. 1994). In the case before us, the original videotape was introduced into evidence and viewed by the circuit court and jury, and the reliability of the enhanced photographs was attested to by multiple witnesses. There was no evidence of distortion to any photograph of the suspect. The circuit court properly ruled in a pre-trial hearing that so long as the process leading to the duplicate videotape and enhanced photographs was explained to the jury, it would allow their introduction. This was done during trial. There was no abuse of discretion under the facts of this case.
VI. MISCELLANEOUS ISSUES
Nooner advances myriad additional points for reversal, none of which has merit.
1. Arbitrary and Discriminatory
He urges that the death penalty was applied arbitrarily and capriciously and in a racially discriminatory fashion in his case. He cites us to a law review article in support of this contention and alludes to the fact that Nooner is black and the victim was white. See “Patterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization,” 37 Stan. L. Rev. 27 (1984). The United States Supreme Court, however, has held that a discriminatory purpose must be proved on the part of the decision-maker in the defendant’s particular case. McClesky v. Kemp, 481 U.S. 279 (1987). Here, Nooner’s allegations were broad brushed, and no proof was offered to show how Nooner’s due process or equal protection rights were violated by a biased or arbitrary judge or jury. The motion was appropriately denied due to lack of proof.
2. Burden of Proof
Nooner contends that the burden of proof must be higher in death cases than the standard of beyond a reasonable doubt in order to meet the requirements of the U.S. Constitution and specifically the requirements of the Sixth, Eighth, and Fourteenth Amendments. State law, however, fixes the burden of proof for all criminal offenses as proof beyond a reasonable doubt. See Ark. Code Ann. § 5-1-111 (Repl. 1993). Nooner adduces no caselaw or other authority in contravention of this statute. The circuit court properly denied Nooner’s motion in this regard.
3. Overlapping
Nooner raises the spectre of unconstitutional overlapping between our capital murder statute and first degree murder statute in that the two statues blur and proscribe the same conduct. According to his theory, the statutes do not give proper notice of the criminal offenses and are void for vagueness. This court has discounted this argument on numerous occasions. See, e.g., Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (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); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991).
Nooner also contends that aggravated robbery is not enumerated as a predicate felony for capital murder in the governing statute, only robbery is. See Ark. Code Ann. § 5-10-101 (Repl. 1993). We adopt again the reasoning in McClendon v. State, 295 Ark. 303, 306, 748 S.W.2d 641, 642-643 (1988):
In support of this the appellant asserts that the underlying felony, aggravated robbery, is not one of the seven felonies that can support a charge of capital felony murder. This argument has been raised before. In Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981), we held the General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still robbery.
Though § 5-10-101(a)(l) has been amended since the McClendon case, the quoted rationale continues to be convincing. The circuit court correctly denied this motion.
4. Mandatory Review
Nooner argues under two of his 15 points that Arkansas statutes dealing with capital murder (Ark. Code Ann. § 5-4-601, etseq. (Repl. 1993)) must be deemed unconstitutional for failure to provide for mandatory appeals of all death cases. Nooner has no standing to make this argument because he has exercised his right to appeal. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992) cert. denied, 112 S.Ct. 3043 (1992). What another defendant sentenced to death might do relative to appeal is immaterial. Id. The circuit court did not err in denying this motion.
5. Mandatory Death Sentence
Nooner maintains that our sentencing statutes demand a death sentence and eliminate consideration of mercy by the jury. See Ark. Code Ann. § 5-4-603 (Repl. 1993). We have previously held that this is not the case. See Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993); Johnson v. State, supra. We have underscored that our statute provides that a jury is free to sentence to life without parole if it finds the aggravating circumstances do not “justify” death. See Ark. Code Ann. § 5-4-603(b)(3) (Repl. 1993). There was no error on this point.
6. Narrowing of Death Crimes
Nooner argues that the definition of capital murder does not sufficiently 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. Lowenfield v. Phelps, 484 U.S. 231 (1988). This court has previously held that our statutes pass the narrowing requirement by limiting the death penalty to crimes involving sufficient aggravating circumstances. See Sheridan v. State, supra. There is no merit to Noon-er’s contention.
7. Victim’s Checking Account
Nooner argues that the circuit court erred in failing to exclude evidence of the victim’s checking account. He makes a Rule 403 argument in this regard that the relevance of the checking account and checks was outweighed by its prejudice to him. See Ark. R. Evid. 403. This is a matter of trial court discretion. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). Aggravated robbery was the underlying felony for the State’s charge of capital murder. It was essential that robbery be proved by the State. Antonia Kennedy testified to seeing the victim’s checkbook with his name on the checks in the possession of Nooner. She described the color of the checks as beige or tan. Her credibility was challenged by the defense as to the existence of the checking account and the color of the checkbook. A bank employee laid the foundation for a check which had the victim’s name and signature. Kennedy then testified that these checks looked like those she saw in the car with Nooner. As the evidence of the checks was part and parcel of the State’s evidence establishing robbery, we find no abuse of discretion in the court’s receiving this evidence.
8. Aggravating Circumstances
Nooner contends that evidence of a prior robbery conviction should not have been received as an aggravating circumstance because it resulted from a guilty plea under the First Offenders Act and the sentence imposed under that Act was inappropriate. The legitimacy of the conviction or sentence, however, is not what the statute requires; rather, it provides that an aggravating circumstance is one where a person has previously committed a second felony involving the use or threat of violence to another. Ark. Code Ann. § 5-4-604(3) (Repl. 1993). We note that Nooner does not contest the fact that he entered a guilty plea to robbery. We hold that the proof of a prior felony involving violence was sufficient.
Nooner further contends that there was no proof that the murder was perpetrated for pecuniary gain, another aggravating circumstance. See Ark. Code Ann. § 5-4-604(6) (Repl. 1993). He references a ring left on the victim’s finger, a necklace around his neck, and the Beretta in the parking lot as evidence of no theft or robbery. Other proof contravenes this assertion. There was proof that Stobaugh’s checkbook was taken, items from his pocket were on the laundromat floor, his hands were raised in the videotape, and Antonia Kennedy testified that Nooner told her that he demanded money from the victim. The evidence of pecuniary gain was clearly sufficient.
9. Victim Impact Testimony
For his final point, Nooner urges that the admissibility of victim impact testimony — specifically, the testimony of the victim’s mother, Paula Stobaugh — was irrelevant and prejudicial. He further maintains that the statute providing for victim impact testimony is vague. See Act 1089 of 1993, now codified at Ark. Code Ann. § 5-4-602(4) (Repl. 1993). We disagree.
The United States Supreme Court permits the States to authorize victim impact testimony. Payne v. Tennessee, 501 U.S. 808 (1991). The Court referred specifically to who might qualify as being impacted by a victim’s death and to the State’s legitimate interest in counteracting the defendant’s mitigating evidence and in reminding the jury that the victim was a person “whose death represents a unique loss to society and in particular to his family.” 501 U.S. at 825. Thus, the testimony may range from the victim’s family to those close to that person who were profoundly impacted by his death. In the case before us, only Mrs. Stobaugh gave impact testimony. We decline to hold Act 1089 of 1993 to be impermissibly vague.
We further decline to limit the applicability of Act 1089 to crimes committed after its effective date on April 13, 1993. What evidence is offered during the penalty phase of the trial and after a finding of guilt is more a matter of procedure. Legislative Acts respecting procedure may be applied to crimes which occurred prior to the Act’s effective date. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). The Court in Payne v. Tennessee, supra, referred to victim impact evidence in the penalty phase as a procedural matter for the states to consider and remedy, if they saw fit:
The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.
501 U.S. 824-825. It is true that Act 1089 does permit other matters relevant to punishment, including, but not limited to, victim impact evidence. But by 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 under Act 1089 did not constitute an ex post facto law. See Mitchell v. Oklahoma, 884 P.2d 1186 (Okla. Crim. App. 1994).
VII. RULE 4-3(h)
The record has been reviewed pursuant to Supreme Court Rule 4-3(h) for reversible error, and none has been found. We do feel constrained to discuss an objection made by the defense which related to a statement made by the prosecuting attorney in closing argument during the penalty phase. This colloquy occurred before the jury:
What is this case about? It’s about a person who committed a robbery in 1987, and who you heard from his own father, from Mr. Nooner (sic), that 10 days after he got out of confinement, he committed another robbery, another theft and another murder.
MRS. O’KELLEY: Your Honor, I’m going to object. There’s not been any evidence that he ever committed a murder.
THE COURT: That will be sustained.
The jury retired to consider its verdict, and the defense moved for a mistrial on grounds that there was no evidence that Nooner had committed any other murder. The circuit court termed the comment a “slip of the tongue” and denied the mistrial motion. Defense counsel requested an instruction that arguments of counsel are not evidence. The court stated that it had already given that instruction but agreed to send another instruction into the jury room reiterating that arguments of counsel are not evidence. This was done.
While we have some question about the timeliness of the mistrial motion, we find no reversible error in what transpired in any case. The defense counsel’s objection was immediately sustained, and the jury was appropriately instructed a second time that counsel’s arguments were just that, argument, and not proof.
VIII. CONCLUSION
The jury found unanimously that two aggravating circumstances existed and no mitigating circumstances were involved. As already stated, we discern no error in these findings. We have recently reiterated that a weighing of aggravating and mitigating circumstances provides a check on arbitrariness. Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995).
Affirmed.
The record indicates that the personal jewelry evidence was elicited during the penalty phase of the trial and not during the guilt phase. Its relevance is limited, therefore, to whether the murder was perpetrated for pecuniary gain — an aggravating circumstance. | [
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Robert H. Dudley, Justice.
Appellant was charged with first-degree murder. Before the trial commenced, appellant moved to quash the jury panel on the ground that the circuit judge was not in the presence of the circuit clerk when the judge selected the random numbers that were to be used by the clerk in selecting the names to comprise the master list of prospective jurors for the following calendar year. See Ark. Code Ann. § 16-32-103 (Repl. 1994). The proof at the hearing showed that the circuit judge mailed a list of random numbers to the circuit clerk, and the clerk then selected the names which matched the random numbers from the voter registration list. The trial court denied the motion to quash, and a jury subsequently found appellant guilty of manslaughter. Appellant appeals from the trial court’s ruling denying the motion to quash. The ruling was in error, but because the error was harmless, we affirm the judgment of conviction.
The statute governing the process is so clear that it needs no construction or interpretation, even though it contains a typographical error. It is a well-thought-out statute, has a solid foundation in public policy, and is to be followed by the circuit judges and clerks. It is as follows:
(a) During the month of November or December of each year, the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county in the following manner:
(1) The circuit judge, in the presence of the circuit clerk, shall select at random a number between one (1) and one hundred (100), inclusive, which shall be the starting number, and the circuit court shall then select the person whose name appears on the current voter registration list in that numerical position, counting sequentially from the first name on the list.
(2) The circuit clerk shall then select the one hundredth voter registrant appearing on the list after the starting number. As an example if the starting number is sixty-seven (67), which is the first selection, the second selection would be the one hundred sixty-seventh registered voter, the third selection would be the two hundred sixty-seventh registered voter, and so forth until the current registered voter list is exhausted.
(3) The circuit judge and the circuit clerk shall then repeat the random selection process until the number of jurors set out in the subsection have been selected.
Ark. Code Ann. § 16-32-103(a)(l)-(3) (Repl. 1994).
The trial court erred when it selected the random numbers outside the presence of the circuit clerk and by not being present when the selection was made, but even so, we do not reverse because the error was harmless. In this case, there is no hint that the circuit judge did anything other than randomly select the numbers, and there is no hint that the circuit clerk did anything other than correctly apply the random numbers to the voter registration list.
Appellant’s motion to quash is not abstracted, and we do not know the full content of the allegations in the motion. The record, as abstracted, does not reveal whether the jury panel that found appellant guilty was picked from a venire composed of the prospective jurors that were improperly placed on the master jury list. Moreover, the abstract does not reveal any information about the panel selected; it does not show the race, gender, age, or occupation of any of the jurors or whether there might be some ground for us to suspect bias. The record does not show that appellant exercised any of his peremptory challenges, and, certainly, it does not reflect that he exhausted his peremptory challenges and was forced to take a juror he did not want. See Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973). Accordingly, we hold that the error was harmless and affirm the judgment of conviction.
Affirmed.
The word “court” is a typographical error for the word “clerk.” Page 1772 of vol. II, book 2 of the 1979 General Acts of Arkansas reads, “and the Circuit Clerk shall then select the person whose name appears. . . .” | [
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PHILLIP T. WHITEAKER, Judge
| tThe State charged appellant Trent Kimbrell with one count of being a felon in possession of a firearm in Case No. CR-2014-5. Kimbrell sought to dismiss the charge in Case No. CR-2014-5, asserting that he was not a convicted felon. Kim-brell also filed a petition to seal a previous probation sentence that he received in Case No. CR-1994-124, contending that he had successfully completed his probation in that ease.- The'Polk County Circuit Court denied both requests, and Kimbrell challenges those decisions on appeal. We affirm.
I. Procedural History
In January 1995, Kimbrell entered a plea of no contest to one count of conspiracy to deliver a controlled substance in Case No. CR-1994-124. At that time, he was placed on four years’ probation; the terms and conditions of Kimbrell’s probation required that he lead |?a law-abiding life, commit no offense punishable by imprisonment, and not use or possess any narcotic or drug. Kimbrell was sentenced pursuant to Act 346 of 1975, which provides for discharge and dismissal opportunities upon fulfillment of the terms and conditions of probation.
In October 1996, the State filed a petition to revoke Kimbrell’s probation, alleging that he had violated the terms and conditions of his probation by being charged with several drug offenses, failing to maintain his child-support payments, and confessing to having used marijuana. Attached to the revocation petition were documents reflecting Kimbrell’s confession to using marijuana and a copy of the criminal felony information charging him with the drug offenses. A revocation hearing was scheduled in December 1996, but it was continued until March 1997. The record does not indicate, however, that a revocation hearing was ever held.
In January 1999, the Polk County Circuit Court entered an “Order -to Waive Supervision Pees” in which it found that Kimbrell had “completed his term of probation” on January 18, 1999, but still owed supervision'fees. The court waived the balance of the fees due to an injury that prevented Kimbrell from working. The order did not, however, mention the issue of expungement. At the time of the entry of the January 1999 order waiving fees, the petition to revoke Kimbrell’s probation was still pending. The State subsequently nolle pressed the revocation petition in April 2000. The order of nolle prosequi indicated that the State had dismissed the underlying felony count upon which the revocation petition was based.
| sAlmost fourteen years later, in January 2014, the State charged Kimbrell with being a felon in possession of a firearm in Case No. CR-2014-5. Kimbrell subsequently moved to dismiss the felon-in-possession charge, asserting that his record should have been automatically expunged upon his successful completion of probation in 1999 pursuant to Act 346, Kimbrell also filed a petition to dismiss and seal Case No. CR-1994-124.
The circuit court denied Kimbrell’s motion to dismiss Case No. CR-2014-5. The court disagreed that Act 346 provided for .automatic expungement. The court found that the statute, on its face, “imposed an obligation on the court to enter an ‘appropriate order’ effectively dismissing the case, discharging -the defendant, and expunging the record.” The court noted, however, that “[n]o guidance is provided as to how a court was to do so unless requested by a defendant.” Commenting that the statute declared, that a defendant is not entitled to an expungement as a matter of right, the court concluded that it could not “imagine that the legislature ever intended that courts would be required to seek out eligible defendants and enter ‘appropriate orders’ without a request to do so.”
The court did not initially rule on Kim-brell’s petition to seal in Case No. CR-1994-124, finding that, because the alleged felon-in-possession charge occurred prior to Kimbrell’s filing of his petition, the granting of the petition would have no legal effect. After Kimbrell filed a motion seeking a specific ruling on his petition to seal, the court entered an order denying it. In doing so, the court found that, while On probation, Kimbrell tested positive for a controlled substance in violation of the terms of his probation. The court determined that Kimbrell’s drug use during his probationary period “could have resulted in his probation being | ¿revoked” and “was certainly reason enough for the court to refuse to seal his record or expunge same[.]” The court concluded by stating that, “as in 1999, [it was] hereby denying [Kimbrell’s] petition to seal.”
Kimbrell timely appealed and now urges three points for reversal: (1) the circuit court erred in 1999 by failing to enter an appropriate order dismissing the case, discharging the defendant, and expunging his record; (2) the circuit court erred in 2014 by denying Kimbrell’s motion to dismiss the 2014 charge on the basis that Kimbrell had an affirmative duty to seek expungement in 1999; and (3) the circuit court erred in 2014 by denying his petition to seal.
II. Standard of Review
Resolution of this case requires us to interpret Arkansas Code Annotated section 16-93-303. Issues of statutory interpretation are reviewed de novo. Barker v. State, 2014 Ark. 467, 448 S.W.3d 197; MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (per curiam). Moreover, we strictly construe criminal statutes and resolve any doubts in favor of the defendant. Blackwell v. State, 2015 Ark. App. 96, 455 S.W.3d 848 (citing Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993)). The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of. statutory interpretation. Id.
IJII. Discussion
Although Kimbrell frames his argument as three separate points on appeal, we believe that there are two dispositive issues: (1) whether section. 16-93-803 provided for automatic expungement at the time of Kimbrell’s sentencing, -and (2) whether the court erred in denying Kim-brell’s petition to seal and expunge his record.-
First, we consider Kimbrell’s argument that the circuit court erred in its interpretation of section 16-93-303. In essence, Kimbrell contends that the circuit court erred in concluding that section 16-93-303 did not provide for an “automatic” expungement upon completion of the terms and conditions of probation.
At the time of Kimbrell’s 1995 sentencing, Act 346 provided as follows:
Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court .adjudication of guilt,whereupon-the court shall enteran appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record.
Ark. Code Ann. § 16-93-303(b)(1) (1987). Kimbrell argues that the phrase “the court shall enter an appropriate-order” (emphasis added) means that the entry of such an order was an administrative’ function to be performed automatically by the court once the defendant fulfilled the terms and conditions of his probation. 'He takes the position that the statute in-place at the time of his sentencing placed no affirmative duty upon him in- order to obthin expungement, other than to fulfill the terms and conditions of his probation. Kimbrell further asserts that, because he did fulfill the terms and conditions of his probation, and because the statute did not place .any affirmative duty upon him to petition.the court for expungement, Rthe court was without authority to deny his request and erred-in shifting the burden of initiating the expungement process onto him. ,
The State, on -the other hand, maintains that the amendment did not shift the duty from the court to the defendant; rather, it merely “established a-uniform process by which -a record could be sealed;” According to the State, Kimbrell’s interpretation of the statute would have meant that a court “would be required to - constantly monitor every case where a defendant was sentenced under the first time offender’s act” to determine whether the defendant was eligible for expungemerit. Because this would be an “absurd” interpretation, the State contends it could not possibly be correct.
We disagree with- the State. Similar statutes have previously been construed as imposing an automatic expungement requirement. In Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990), the supreme court interpreted a similar statute, the Youthful Offender Alternative Service Act. The language of that sentencing statute provided that, “[u]pon the completion of sentence or probation imposed under this Act, the Commissioner [of Correction] shall direct that the record of the eligible offender be expunged of the offense of which the eligible offender was convicted.” Ark. Stat. Ann. § 43-2344 (Repl. 1977). The supreme court held that the plain language of the statute meant that a youthful offender “does not have to petition for expungement. Instead, it is a ministerial duty to be completed by the Commissioner of the Department of Correction.” Irvin, 301 Ark. at 418, 784 S.W.2d 17at 764. Because the statute used the mandatory word “shall,” the court concluded that the act of expunging the offender’s record was a ministerial duty. Id.
Similarly, in State v. Ross, 344 Ark. 364, 39 S.W.3d 789 (2001), the supreme court interpreted Arkansas Code Annotated section 5-64-407. That statute specifically provided that, “[u]pon fulfillment of the terms and conditions [of probation], the court shall discharge the person and dismiss the proceedings against him.” As in Irvin, the court held that “expungement is a ministerial duty” because of the mandatory language of the statute. Because Ross had pled guilty under this act, the circuit court “was mandated to discharge Ross and the proceedings against him upon Ross’s fulfillment of the terms and conditions of his probation.” Id. at 367, 39 S.W.3d at 791 (emphasis added).
Thus, the supreme court’s interpretation of statutes similar to section 16-93-303 was that the phrase “the court shall enter an order” meant a mandatory, ministerial function or duty that was the responsibility of the court, not the defendant. As such, the circuit court in the instant case erred in its conclusion that “the right of ex-pungement has never been automatic but requires some affirmative duty on the part of a defendant to seek to avail himself of this option.” This affirmative duty did not statutorily exist at the time of Kimbrell’s sentencing in 1995.
Admittedly, Act 535 of 1995 amended section 16-93-303 by adding a requirement that the “procedures established in § 16-90-901 et seq.” be complied with prior to expungement. This amendment essentially required a defendant who is eligible for expungement to file a uniform petition to seal his or her records in order to initiate the |sexpungement process. See Ark. Code Ann. § 16-90-904 (Repl. 2006). This amendment and affirmative duty, however, were not in effect at the time of Kimbrell’s sentencing. A sentence must be in accordance with the statutes in effect on the date of the crime. Edwards v. State, 70 Ark.App. 127, 130, 15 S.W.3d 358, 360 (2000). At the time Kim-brell was sentenced, expungement should have occurred automatically upon the fulfillment of the terms and conditions of probation.
Our conclusion that the circuit court erred in its interpretation of the statute is not, however, determinative of the outcome of Kimbrell’s appeal. It is still necessary to determine whether he “fulfilled the terms and conditions of probation,” as such a fulfillment was a predicate to eligibility for automatic expungement.
In order to be entitled to expungement, a defendant must have fulfilled the terms and conditions of probation. Among the terms and conditions of Kimbrell’s probation were the requirements that he “lead a law-abiding life and commit no offense punishable by imprisonment” and “not use or possess ... any narcotic or drug.” The State asserts that Kimbrell failed to fulfill those terms because, while he was on probation, he was charged with several felony drug counts and admitted to having used marijuana. As a consequence of those charges and his admission, the State filed a petition to revoke his probation in 1996. Kimbrell responds that he successfully completed his probation because he was never convicted of those offenses, and the State ultimately nolle pressed the revocation petition. |9We find the decision in Luevano v. State, 2012 Ark. App. 436, 2012 WL 3744797, to be persuasive in concluding that Kimbrell did not fulfill the terms and conditions of his probation and was thus not entitled to expungement.
In Luevano, the defendant was placed on probation, and one of the conditions of his probation was that he refrain from committing any offense punishable by imprisonment. He subsequently sought ex-pungement of his record pursuant to section 16-93-303. The circuit court denied expungement because, while on probation, Luevano . had been convicted in another state of an offense punishable by imprisonment. Luevano appealed, conceding that he had been convicted of an offense but contending that he nonetheless had fulfilled the terms and conditions of his probation because the State of Arkansas did not file a petition to revoke his probation. This court disagreed, holding as follows:
Appellant agreed to refrain from committing any offense punishable by imprisonment during his probationary, period and, by his own admission, failed to fulfill that agreement. Appellant neither explains nor cites authority for the notion that a clear violation of probationary conditions must be ignored in an expungement proceeding if the violation did not result in revocation of probation. The decision of whether to immediately enter an adjudication of guilt upon violation of probationary conditions is a matter within the discretion of the trial court pursuant to the express language of the statute, and we hold that failure to institute revocation proceedings has no bearing on the question of whether a defendant fulfilled the terms and conditions- of his probation under Ark. Code Ann. § 16-93-303(b).
Luevano, 2012 Ark. App. 436, at 2, 2012 WL 3744797.
In this ease, the State went so far as to institute revocation proceedings. While the revocation proceedings were based in part on unproven criminal allegations, as Kimbrell complains in his reply brief, they were also initiated based partially on Kim-brell’s confession, .to having used marijuana, which was a clear violation of the terms and conditions of his |1nprobation that he refrain from using or possessing drugs. As in Luevano, it is immaterial that the State did not prosecute the revocation to its completion or that the petition was subsequently nolle pressed. The fact remains that Kimbrell admitted to violating a condition of his probation; therefore, by definition, he did not fulfill those terms and conditions.
Kimbrell nonetheless argues that the circuit court entered an order waiving supervision fees in which- the court stated that he had “completed his term of probation.” We disagree that the phrase “com pleted his term of probation” is synonymous with “fulfillment of the terms and conditions of probation.” We Relieve that the “term of probation” to which the court was referring was the literal four-year period to which Kimbrell was sentenced. See Black’s Law Dictionary 1608 (9th ed. 2009) (defining “term” as “[a]- fixed period of time”). Here, it is likely that the court did not automatically seal and expunge Kimbrell’s record because, while the four-year “term” of his probation had expired, he had not fulfilled the “terms and conditions.” The pending charges and the pending revocation petition had been filed in the Polk County Circuit Court, so the court was clearly aware- of those matters at the'time Kimbrell’s probation expired; moreover, the court-obviously retained jurisdiction over the'proceedings in Case No. CR-1994-124 even after the four-year period had expired, because the nolle pros order in that case was not entered until May 2000.
Because Kimbrell did' not “fulfill the terms and conditions” of his probation, the court did not err- in denying his 2014 petition to seal. Accordingly, because the court did not err in that respect, Kimbrell’s 1995 conviction was a valid basis for the 2014 felon-in-possession |ncharge. The circuit court therefore did not err in denying Kimbrell’s motion to dismiss that charge. We therefore affirm.
Affirmed.
Abramson, J., agrees.
Virden, J., concurs.
. The Act was previously codified at Ark. Stat. Ann. § 43-2344 and later at Ark. Code Ann. § 16-93-510 (Supp. 1989). It was repealed by Acts 521 and 548 of 1993.
. Sections 16-90-901 et seq. were subsequently repealed by Act 1460 of 2013. The procedures for sealing criminal records are now found in Arkansas Code Annotated sections 16-90-1401 et seq. (Supp. 2015). | [
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JOSEPHINE LINKER HART, Associate Justice
1,Appellant, Cathy Hale, petitioned the circuit court to obtain a temporary and permanent guardianship over her father, appellee Lattie Coffman. At the hearing on the request for a permanent guardianship, the circuit court granted Coffman’s directed-verdict motion to dismiss Hale’s petition. On appeal, Hale contends that the circuit court erred in concluding that because Conway Healthcare and Rehabilitation Center (CHRC) is an institution for treatment of mental or nervous diseases and Cofftnan was a resident, Hale was required to present at the hearing the testimony or the sworn written statement of a professional who was on the medical staff of CHRC. We reverse and remand.
According to Hale’s petition, eighty-four-year-old Coffman suffered from mental incapacity and was unable to provide for his health, maintenance, and safety. Attached to the ¡{.petition was the affidavit of Dr. Raymond- H. Clark. His affidavit stated that he was a psychiatrist who had treated Coffman. Doctor Clark opined that Coffman was currently an incapacitated person who was impaired by reason of mental deficiency due to old age and physical. illness and that Coffman lacked sufficient understanding or capacity to manage his estate or to make or communicate decisions to meet the essential- requirements for his health or safety.. Attached to Dr. Clark’s affidavit was his own letter indicating that he served as the medical director of Phases Geriatric Psychiatry Inpatient Unit at the River Valley Medical Center in Dardanelle, Arkansas. The letter detailed the reasons for Dr. Clark’s findings. Though not mentioned in the petition, apparently an affidavit from Hale was also attached to the petition in which Hale, a registered nurse specializing in mental-health nursing and hospice care, also opined that Coffman was currently an incapacitated person who was impaired by reason of mental deficiency due to old age and physical illness and lacked sufficient understanding or capacity to manage his estate or to make or communicate decisions to meet the essential requirements for his health or safety.
The circuit court entered an order of temporary guardianship. At the hearing on the permanent guardianship, Hale submitted the deposition of Dr. Kevin Beavers, a doctor of internal medicine, who, according to the deposition, was Coffman’s primary-care physician. Doctor Beavers concluded that Coffman was unable to in dependently provide the means for his own health care, food, shelter, clothing, and protection. Also made a part of the record was Dr. Clark’s letter described above. Hale also submitted a psychological evaluation by Steve Shry, who opined that Coff-man demonstrated “significant mental and physical impairments |8that would appear to moderately to severely limit his ability to perform almost all daily adaptive functioning tasks without supervision or aid.” He further concluded that Coffman’s mental condition was not likely to improve and would continue to deteriorate due to age and poor physical health.
At the close of Hale’s case, Coffman’s attorney argued that Coffman was entitled to a “directed verdict.” Coffman contended that a nursing home is an “institution,” and because Coffman was confined or undergoing treatment in an institution, CHRC,- for the treatment of mental or nervous diseases, Hale was required to present the testimony or the sworn written statement of a professional who was a member of the medical staff of CHRC. Hale argued that because CHRC was a long-term care facility, it was not an institution for the treatment of mental or nervous diseases, and thus, Hale did not have to produce the testimony or the sworn written statement of a professional on the medical staff of CHRC. After a hearing at which the circuit court heard arguments of counsel, the court granted Coffman’s motion and dismissed the petition. In its order, the court stated that Hale failed to comply with Arkansas Code Annotated section 28—65—211(b)(2) (Repl. 2012) because she failed to put forth a professional evaluation from a member of the medical staff of CHRC, where Coffman was located at the time of the trial.
On appeal, Hale argues that the circuit court erred in finding that CHRC is an institution for the treatment of mental or nervous diseases. Hale therefore concludes that she was not required to present testimony or a sworn written statement regarding Coffman’s incapacity by a professional on the medical staff of CHRC. Coffman did not file a responsive |4brief.
At the close Hale’s case, Coffman moved for a directed verdict; however, this was a bench trial, and we treat, the motion as one for dismissal. Ark. R. Civ. P. 50(a) (2015). Where there is no material question of fact, we determine whether the moving party was entitled to judgment as a matter of law. City of Rockport v. City of Malvern, 2012 Ark. 445, at 3, 424 S.W.3d 870, 873. We review issues of statutory construction de novo, as it is for this court to interpret a statute. Id., 424 S.W.3d at 873.
Arkansas Code Annotated section 28-65—211(b)(1) provides that in “determining the incapacity of a person for whom a guardian is sought to be appointed ... the court shall require that the evidence of incapacity include the oral testimony or sworn written statement of one (1) or more qualified professionals.” Section 28-65-211(b)(2), however, provides that if “the alleged incapacitated person is confined or undergoing treatment in an institution for the treatment of mental or nervous diseases ..., one (1) of the professionals shall be a member of the medical staff of that ... institution.” (Emphasis added.)
There was no dispute between the parties that CHRC is a long-term care facility. Rather, Coffman contended that, as an “institution,” CHRC fell within section 28-65—211 (b)(2). A “long-term care facility,” however, is defined as a “nursing home, residential care facility, assisted living facility, post-acute head injury retraining and residential care facility, or any other facility which provides - long-term medical or personal care.” Ark. Code Ann. § 20-10-101(10)(A) (Repl. 2014). Given this statutory definition, we hold that, for the purposes of Arkansas Code Annotated section 28-65-211(b)(2), CHRC is not an “institution for the [^treatment of mental or-nervous diseases.” Accordingly, we conclude that the circuit court erred ¡when it concluded that Hale was required to present oral testimony or a sworn. written statement of a qualified professional who was a member of the medical staff of CHRC. Thus,,we. reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
. In the same petition, another of Coffman’s daughters, Joyce Coffman, sought to be a co-guardian. The circuit court, however, struck her name from the order granting a temporary guardianship and granted it only in Hale's name. | [
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ROBERT J, GLADWIN, Chief Judge •
| Merry Johnson appeals the Craighead County Circuit Court’s April 28, 2015 order denying his petition for grandparent visitation. On appeal he argues that (1) the trial court abused its discretion by refusing to deem admitted his request for admissions and (2) the trial court clearly erred in finding that it was not in the child’s best interest to have visitation with him. Appellee Shellee Bennett did not file a responsive brief. We affirm.
I. Facts
Appellant is the paternal grandfather of C.J., born January 5, 2010. He filed a petition to establish grandparent visitation on July 16, 2014, alleging that paternity of C.J. had been established in Tennessee and that his son, Jarrod Johnson, was ordered to pay child support to appellee Shellee Bennett, C.J.’s mother. Appellant alleged that he had frequent and regular contact with the child for at least twelve consecutive months until May 21, 2014, 12when appellee refused to allow visitation. He sought visitation rights and the child’s social security number in order to establish a bank account for C.J.’s benefit. Ap-pellee filed a pro se answer on August 15, 2014, alleging that all contact with appellant ceased when she discovered evidence suggesting that he had molested C.J. during her last visit with him.
Appellant filed a request for admissions on November 24, 2014, seeking appellee’s admissions that appellant had (1) frequent contact with C.J.; (2) regular contact with C.J.; (3) the capacity to give C.J. love, affection, and guidance; (4) established a significant relationship with C.J.; and (5) established a viable relationship with C.J. He also sought admissions that (6) visitation with, him was in C.J.’s best interest; (7) the loss of the relationship between appellant and C.J. would harm C.J.; and (8) appellant was willing to cooperate with appellee if visitation were awarded. The certificate of service attached to the request for admissions provided that the pleading was mailed on November 13, 2014, to “Ms. Shellee Bennett, 1412 CR 739, Brookland, AR 72417.”
At the February 26, 2015 hearing on appellant’s'.petition for grandparent visitation, appellee made -her appearance tele-phonically because of icy-road conditions. She testified that she had remarried and that her last name is Cooper. She said that she resides at 115 Perry Avenue, Grenada, Mississippi, and that she had moved there on December 16, 2014. She said that she had lived in Brookland, Arkansas, from December 31, 2013, until December 16,2014. She explained that on November 13, 2014, she was no longer living- at 1412 County Road 739, Brookland, Arkansas, because she had moved “a couple of blocks down into a bigger house,” and her mail had been forwarded to her. Appellee stated that l.qshe did not remember receiving any request for admissions, but that she did receive the protective order dated November 24,2014.
Prior to living in Brookland, appellee lived in the area of Pleasant Shade, Tennessee. She said that she has three children — one in college, one who.is eleven years old, and C.J., who is five years old. She testified that Jarrod Johnson is C.J.’s biological father, that paternity and child support had been established for C.J. in Tennessee, but that Jarrod did not have custody or visitation-with C.J.
Appellee testified that appellant was living in Minnesota when C.J. was born, and he had visited C.J. after her birth. Appellant later moved to Tennessee in 2012, and he visited C.J. from thirty minutes to an hour every couple of months. After Jarrod “got more out of the picture,” appellant spent more time with C.J. Appellee testified that C.J. was nearly four years old in December 2013 wlién she and her family moved to Brookland, Arkansas, several hours away from appellant. Appellee admitted that she had refused to allow appellant visitation with C.J. since May 2014.
Sherry Timmons testified that she was formerly married to Jarrod, and they have two girls, now ages sixteen and nineteen. She said that she also has two boys, ages ten and eight, who are not Jarrod’s children. - She said that appellant had been involved with her daughters since his move to Tennessee in 2012, that he had attended their basketball games, had planned special birthdays, and had also attended family functions, homecoming, and graduations. She said that he had seen them several times a month, and sometimes every week, and that many times he had included her boys'in the visits. She testified that, even | though her relationship with Jarrod was not consistently good, she had an extraor-dinaiy relationship with appellant because of the time, energy, and effort that appellant had spent with her girls. She said that her girls had enjoyed a lot of time with C.J. before her move to Arkansas, and that she had no concerns about her children being in appellant’s care.
Ms: Timmons testified that appellant’s oldest daughter sent her an email stating that appellant “was doing all of this stuff and [I] needled] to get all four of [my] children out of there.” She said that she questioned each of her children independently and that she had gone to thé Department of Human Services, where someone in child services interviewed her children regarding the allegation in the email. She said that there was no basis for the allegation and that the woman from child services who interviewed the children admired the relationship they had built with appellant.
. Appellant testified that he moved from Minnesota to Ashland, Tennessee, in 2012, and then moved to Spring Hill, Tennessee, in December 2013; He said that he has three children, Laura, Jarrod, and Melody. He claimed that his son Jarrod was an alcoholic who .had failed miserably in his relationship with his children.. He admitted that he had a difficult relationship with Laura but claimed that he had a wonderful relationship with Melody. He said that Laura suffered from alcoholism and that she used prescription drugs. He said he believed that his children suffered a genetic predisposition to alcoholism from their mother’s family. He also believed that Laura suffered from false-memory syndrome due to her addictions. He said that Laura accused him of molesting his grandchildren, but that child services rejected the accusation, deciding that it was without foundation. He said that he Ispaid almost $1000 for a polygraph test to show people that “took all of her allegations together.”
He testified that he began visiting C.J. once or twice a month in 2013. He said that he had a visit with C.J. in February 2014, when they- stayed overnight in> a hotel. He was married on December 7, 2013, to Sandy Johnson, who testified that C.J. refused to sleep alone and was comfortable with appellant.
Appellant said that the last time he saw C.J. was May 18-21, 2014, when he and Sandy took C.J. to Tennessee. He said that, on the last day, they were packed and ready to go meet appellee in Jackson, Tennessee. He was giving C.J. her last bathroom break when she' screeched, said that it hurt, and explained that it was because she had not wiped good. He said he got some Vaseline and “put it on the outside of where she goes number one.” He claimed that he did so because she was pointing to where her difficulty was, and she was red and apparently chapped. He then got her dressed and into the car. The ear-seat strap was uncomfortable for her, and C.J. complained during the drive to Jackson.
Appellant said that they texted appellee about C.J.’s condition and told her that the child needed to be seen by a doctor. He testified that appellee never returned his calls after the child was delivered to her, and he had not seen C.J. since that time. He said that after he contacted his attorney to start the process of -visitation, he became aware'that appellee had made allegations that he had sexually abused C.J. He said that child services investigated and ruled the allegations unfounded. He claimed that he would be willing to cooperate with appellee if he were awarded visitation.
IfiWhen questioned by the trial court, appellant said that he had slept with C.J. the night before the incident in question because C.J. wanted to sleep with him and his wife, but Sandy did hot want “a squirmy kid in the bed.” He said that C.J. had wet the bed the night before and he had been soaked by it. He also said that he had applied the Vaseline to the surface of C.J.’s skin. He stated that C.J. had not done , any screaming or complaining about redness or soreness during the prior four days of the visit.. Finally, he said that he could understand why the mother was concerned.
Appellee testified that before May 2014, she had no problem with appellant having contact with C.J. When C.J. came home from the visit in such pain, she took her straight homeland put her in the bathtub. C.J. would not stop screaming, and appel-lee said that she saw that the child was not red on the outside but that she was red on the inside. She also saw what looked like a tear. C.J. told appellee that “he put white stuff on .her private area,” and this was comparable to what appellant had told her .about putting Vaseline on C.J.’s vagina. Appellee took the child to the emergency room, and the child was examined. Appellee testified that there was no irritation on the outside but there was on the inside. Appellee claimed that the hospital-discharge paper “actually said sexual molestation was their diagnosis.” ,
After C.J. had been examined at the hospital, the Tennessee Department of Children’s Services .investigated, and the file was admitted into evidence at the hearing. An investigatory form within, the file reflects that C.J. responded to a nurse’s questioning, stating that one time her grandfather had looked at her, referring to her vaginal area, and pointed 17to a picture of a vagina; when asked to show the nurse where her grandfather had touched her, C.J. said, “Inside it.”
Appellee testified that C.J. was not treated for a urinary-tract infection. She also claimed that the child’s behavior, especially around men, became different. She said that she did not want C.J. to have any more contact with appellant and that C.J. began to display fear of men and became reserved. She testified that C.J. began wetting the bed, which'was unusual. Appellee said that she had not known that C.J. was sleeping with appellant until C.J. returned from “that visit at their house.” She said that C.J. had always slept alone before. She said that C.J. was two years old the last time she saw her half sisters and that C.J. did not talk about her father. Appellee said that she had remarried, that her new husband wanted to adopt C.J., and that C.J. considered him to be her father.
The trial court took the case under advisement and issued a letter opinion on March 18, 2015, denying appellant’s petition for visitation and denying appellant’s motions to deem admitted the request for admissions and for a default judgment. The trial court’s order states in pertinent part as follows:
35. It is questionable whether petitioner has proven he has capacity to give love, affection and guidance. Each of Mr. Johnson’s three children have significant issues as adults. Those issues include criminal activity, drug and alcohol addiction and allegations of sexual abuse by Mr. Johnson on one of his children.
36. Petitioner has failed to prove that the loss of the relationship between he and the child is likely to harm the child.
37. Respondent testified that the psychologist recommended [C.J.] have no further contact with petitioner. No one knows for sure if petitioner sexually abused this child or not however, the greater weight of the evidence suggests that he did. That evidence being she was returned to her mother in so much | spain she was walking bowlegged, she was screaming out in pain, her vagina was red and swollen, she told the nurse he stuck his finger inside her vagina, not on the outside as he stated, she said at the time I had white stuff on there which, does not sound like vaseline, each and every one of the symptoms testified to by respondent are classic signs of sexual abuse, ie. bed wetting, afraid of men, thumb sucking, not wanting to sleep by herself. Most importantly, the medical exam did not find an alternate cause for her redness and screaming in pain. She was not treated for a urinary tract infection as petitioner suggested was the cause.
38. Petitioner wants to have unsupervised visits and wants to take the child to his home. The parties no longer live in the same state and live four and one-half to six and one-half hours away from each other making it very difficult if not impossible for the mother to supervise any visits or to be near in case of an emergency.
39. The preponderance of the evidence is that petitioner inappropriately put his finger(s) in this child’s vagina. The Court questions his decision to treat a “urinary tract” infection by rubbing vaseline on her, especially in her vagina. The Court also found it suspicious that petitioner said he never touched her genitals while bathing her, he allowed her to do that but, he certainly didn’t hesitate to rub her genitals with vaseline, when his wife was outside in the yard. Also suspicious was his voluntary statement at the time of pickup/drop off that, I didn’t touch her down there.
40. The preponderance of the evidence is that it would not be in the child’s best interest to award visitation at this time.
41. This Court finds that the presumption toward the mother’s decision has not been rebutted and the petition is denied.
After the order was entered, appellant filed a timely notice of appeal, and this appeal followed.
II. Requests for Admissions
A trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Deering v. Supermarket Investors, Inc., 2013 Ark. App. 56, at ¶ 7, 425 S.W.3d 832, 836. To have abused its discretion, the trial court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, or without due consideration. Id.
Hardesty v. Baptist Health, 2013 Ark. App. 731, at ¶¶ 4-5, 431 S.W.3d 327, 330.
| ^Appellant argues that the trial court erred in finding appellee’s testimony credible and in denying the motions to deem the request for admissions as admitted and for default judgment. Appellee testified that she did not receive the request for admissions because she was not living at 1412 CR 739, Brookland, Arkansas, on November 13, 2014. She said she had “just” moved into a larger house a couple of blocks down the road, and her mail was being forwarded to her. Appellant argues that a letter from his counsel along with the trial court’s notice of setting and pretrial-information sheet were mailed to appellee on October 7,2014, via certified mail, restricted delivery, return receipt requested, and were returned unclaimed. He asserts that appellee did receive the protective order that was filed on November 21, 2014. Also, on January 13, 2015, the trial-court assistant mailed a letter to appellee at the Brookland address, and it was returned on February 5, 2015, with the handwritten message “refused” and a United States Post Office sticker with the message “Return to Sender, Refused, Unable to Forward.” Therefore, appellant contends that the trial court erred in finding appellee’s testimony that she did not receive the request for admissions to be credible.
We hold that there was no abuse of discretion in denying appellant’s motions. Appellee testified that she had moved for a short period and was having her mail forwarded during the time she should have received appellant’s request for admissions. She stated that she did not receive those requests. Because the trial court’s credibility determinations are entitled to great deference, we find no abuse of discretion given the evidence before the trial court. See Gibson v. Gibson, 87 Ark. App. 62, 185 S.W.3d 122 (2004) (where this court affirmed the trial court’s acceptance of Ms. Gibson’s assertion that she did not receive the 11 nrequests for admissions with the other documents served upon her at her home in Colorado and denied the request to deem them admitted).
III. Best-Interest Analysis
Regarding visitation, this court has stated,
The determination of visitation rights is a matter that lies within the sound discretion of the circuit court. Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). The main consideration in making judicial determinations concerning visitation is the best interest of the child. See id. Further, this court has traditionally reviewed matters that sounded in equity de novo on the record with respect to factual questions and legal questions. Id. We have stated repeatedly .that we will not reverse a fmdi ing by a circuit court in an equity case unless it is clearly erroneous. Id. We have also-stated that a- finding of fact by a circuit court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of .the evidence is left with a definite and firm conviction that a mistake has been committed. Id.
In resolving the clearly erroneous question, we-must give due regard to the opportunity of the court to judge the credibility of witnesses. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. This deference to the circuit court is even greater in cases involving child custody or visitation,, as a heavier .burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. In re Adoption of J.P., 2011 Ark. 535, at ¶¶ 12-13, 385 S.W.3d 266, 274.
De novo review does not mean that the findings of fact of the circuit judge are dismissed out of hand and that the appellate court becomes the surrogate trial judge. Stehle v. Zimmerebner, 375 Ark. 446, 455-56, 291 S.W.3d 573, 580 (2009). What it does mean is that a complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred either in making a finding of fact or in failing to do so. Id.
Gerking v. Hogan, 2015 Ark. App. 678, at ¶¶ 2-3, 2015 WL- 7769221. Further, when visitation is at issue, we will not reverse the circuit court’s decision absent an abuse of discretion. Bowen v. Bowen, 2012 Ark. App. 403, at ¶ 2, 421 S.W.3d 339, 341.
11t Arkansas’s grandparent-visitation statute, Arkansas Code Annotated section 9-13-103(c) and (e) (Repl. 2009), provides as follows:
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and '
(B) Visitation with the petitioner is in the best interest of the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must ¡prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
Appellant claims that the trial court erred in finding that the.evidence presented was insufficient to rebut the presumption that a custodian’s decision to deny grandparent visitation • was in the best interest of the child. First, he contends. that he has the capacity to 'give the child love, affection, and guidance. He claims that the trial court erred in finding that each of his three children had significant issues as adults because the evidence was that he had a wonderful relationship with his youngest daughter, Melody. He also claims that: Jarrod suffers from alcoholism and depression and that appellant attended alcoholic-support programs with appellee in hopes of helping Jarrod and supporting his recovery. . He argues that his daughter Laura suffers, from alcoholism, but when she was sober,- she accomplished 1iamany things and was successful in business. He contends that both of these children have a genetic predisposition to alcoholism, and their alcoholism is not correlated to his parenting or love for them. He claims that the trial-court erred in relying on Laura’s sexual-abuse allegations because he had her removed from the home when she was in high school because she was dangerous to the family. He points to at least one granddaughter’s anger at Laura for making the accusations and her insistence that appellant never did anything to make her feel uncomfortable. He also emphasizes that the investigation was unfounded and closed. He contends that he has an extraordinarily close-relationship with Ms. Timmons, the mother ,of two of his grandchildren, and- that he sees those children many times a month. ,
Second, he claims that the loss of the relationship between him and the child is likely to harm the child. He cites Grant v. Richardson, 2009 Ark. App. 187, 300 S.W.3d 499, for the proposition that grandparent visitation is in the children’s best interest when evidence is presented that, without court-ordered ' visitation, the grandparent would likely be denied reasonable visitation with the children. However, the Arkansas Supreme Court overruled Grant to the extent that it conflicted with its holding' that evidence must be presented to demonstrate that the relationship between the grandparents and grandchild “had been lost or would be lost.” In re Adoption of J.P., 2011 Ark. 535, at ¶¶ 16-17, 385 S.W.3d 266, 276. Appellant also cites Favano v. Elliott, 2012 Ark. App. 484, 422 S.W.3d 162 (Abramson, J., dissenting), for the dissent’s belief that proof that a child will lose a nurturing, loving relationship with an entire branch of the family is sufficient to support a finding of likely harm.
I lain support of Ms'argument, appellant asserts that there is no court order awarding his' son Jarrod visitation with C.J.; appellant spent more time with C.J. after Jarrod was out of her life; C.J. saw her half' sisters before moving to Arkansas; C.J. and her'half sisters spent time together with" appellant; and appellant can facilitate a relationship between C.J. and her half sisters, as well as other people on her father’s side of the family. Appellant contends that 'appellee’s concern about C.J. being adopted by -appellee’s new husband and becoming confused over her relationship with appellant’s family is not warranted. He claims that he has been the constant in C.J.’s life,- as opposed to appellee’s moving her to Arkansas and exposing her to- new relationships.
Appellant also claims that the trial court’s finding that he sexually abused the child is erroneous. He recounts his testimony regarding C.J.’s complaints while using the bathroom on the last day of their visit and his actions regarding same. He also contends that C.J. never once stated that he hurt her when she was questioned by the Arkansas State Police Investigator. Appellant' reiterates his testimony that C.J. did not want' to sleep alone, that his wife did not want to sleep -with a squirmy child, and that appellee knew that appellant had stayed in the same hotel room as C.J. in February 2014. Appellant also claims that the house appellee and her children lived in prior to her move was small and had only two bedrooms; thus, he contends that C.J. had not always slept in a room by herself.
Appellant argues that the trial court’s reliance on the fact that the four year old wet her bed as an indication of sexual abuse was in error. He argues that the child wet the bed the night before the incident. Further, he contends that it is not uncommon for children | uto improperly wipe or to have damp panties after they go to the bathroom. He claims that appel-lee’s testimony at trial and the information she gave investigators was not the same, and that the investigation file was closed because the allegations were unsubstantiated and unfounded. He claims that ap-pellee’s word is not credible and that the trial court erroneously failed to find that the loss of the relationship between appellant and C.J. would harm the child.
Third, appellant claims-that he is willing to cooperate with appellee regarding visitation. He alleges that it is undisputed that he is willing to cooperate and that he would help facilitate transportation and have open lines of communication with ap-pellee.
As was recited in the trial court’s order, there was evidence that the child suffered from pain and swelling in her vaginal area and evidence that her grandfather touched her, although the evidence of the extent and form of the touching was contradictory. After a de novo review, and giving due regard to the trial court in determining the credibility of the witnesses, we hold that the trial court’s findings were not clearly erroneous. Accordingly, the denial of appellant’s request for grandparent visitation was not an abuse of discretion. Therefore, we affirm.
Affirmed.
Abramson and Brown, JJ., agree. | [
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ROBERT J. GLADWIN, Chief Judge
h Farris Holliman, Sheila Holliman, and Leon Holliman, individually and in his capacity as trustee of the Zoe Holliman Revocable Trust (Trust), appeal the Cleburne County Circuit Court’s December 2, 2014 order denying and dismissing their claims of undue influence and breach of fiduciary duty, among others, against appellees Linda Johnson and Garry Holliman, both in their individual capacities and as trustee and successor trustee of the Trust. Appellants contend that the .trial court erred in finding that the settlor decedent, ninety-four-year-old Zoe Nellie Holliman, was not unduly influenced and had the requisite capacity to execute the Trust.
|aI. Facts
Zoe and her husband John Hersel Holli-man had six children — Farris, Leon, Cor-lis, Altis, Garry, and Linda. John Hersel Holliman died in 1999; thereafter, the six children shared, with varying responsibilities, in the care of their mother, Zoe. Leon testified that he helped with her finances, including paying her bills from his own funds each month and reimbursing himself by collecting her endorsed social security checks. According to his testimony, Leon cared for Zoe’s lawn and home maintenance, and she exclusively relied on him after his father’s death.
On December 11, 2008, Zoe signed a Last Will and Testament (Will) devising her property in. equal shares to her six children. The Will was signed after a family discussion that included Zoe and her six children, and her property was not specifically listed in the Will. At the time that she signed the Will, Zoe owned 300 acres, which she divided and deeded to her children by separate deeds on May 9, 2009. Zoe did not deed any mineral rights .associated with the property, but maintained title to those rights. Also on May 9, 2009, each of the children signed an agreement as Zoe’s heirs, acknowledging their duties to Zoe and allocating their respective duties and the management of her property.
On October 25, 20Q9, Zoe fell and broke her leg. She was admitted to the hospital, underwent surgery, and spent time in rehabilitation. After about fifteen days, Zoe was released from the hospital and went to her home, where she was .cared for by her children on a rotating basis. Linda began staying most nights with her mother, and she and Garry advocated Zoe taking her Oxycodone, prescription medication, but the other four siblings were against it because they believed the medication was too strong. Leon testified that |sZoe had a hospital bed at her house, but that Linda “took her out and started sleeping with her,”, although she had not done so in the prior ten years.
Zoe was readmitted to the hospital, in mid-December 2009, and she stayed there three weeks. The family celebrated Christmas 2009 in the hospital with Zoe. On December 30, 2009, Zoe, who was still hospitalized, signed the Trust, equally dividing her property at her death among her six children. Zoe, Garry, and Leon were named as joint trustees, and Linda was named as successor, trustee. Linda and Garry were at the hospital-room meeting with Zoe and the attorneys who prepared the Trust and associated documents, but Zoe’s other children were not present. Leon testified, that Garry asked him to go to the hospital on December 30, 2009, because Zoe “had a surprise” for him and his brothers. Leon said that instead of going on December 30, he and others had visited Zoe the day before, and she did not tell them about the Trust. However, Leon later signed as joint trustee of the Trust.
The Trust specifically listed 159 acres as part of Zoe’s property. This specific listing ' differentiates the Trust from Zoe’s previous Will. Farris claimed that he had purchased the 159 acres in 1978 but did not want it titled in his name. He said that his siblings knew that the 159 acres were his,' and that he paid his father and Leon for it, mostly with cash, but had no receipts. Farris said that his mother had given him the “bonus” money she received on the 159 'acres based on the mineral rights, and he believed that he owned the • 159 acres. Evidence was presented that the parties disagreed on the ownership of the 159 acres, some believing that Farris had purchased it through his father with Leon’s help, and others [ Relieving that Farris had never paid his father or Leon for the property. All acknowledged, however, that the acreage was titled in Zoe’s name. ■
Upon Zoe’s release from the hospital in January 2010, she returned to her home, but her children began to disagree among themselves regarding her care; Distrust developed among, the siblings, and Linda eventually moved Zoe into-her own home. Leon testified as follows:
I think Linda and Garry set up this trust so they- would have full control of Momma’s -assets. Because they already had control of her mind. Because they had been brainwashing' her for all this time. And she didn’t know no better. Momma received her first royalty check the first day she was in the hospital in— that would have been ’09,1 think. October, probably of ’09. That check was $26,000. The next month she received an oil and gas check and I believe it was close- to the same; about $26,000. In the ten years I did her finances, she never received an amount of money that large. Her social security was $412 a month, I believe. The rent income was $400 a month. Her CDs received interest monthly. She’d get about $30 or $31 apiece off of them every month. At the time the Will and the family agreement and the deeds were passed out, Momma was receiving a minimal amount of money each month.- In the two months prior to the Trust being executed Momma received two $26,000 oil and gas checks. That is what I’m referring to about them wanting to be in control. That and all her assets. I mean, that would give them control of everything.
Zoe was hospitalized in February 2010, and Leon and Farris alleged that they were barred from seeing her. On April 9, 2010, guardianship proceedings were initiated.
On May 13, 2010, Leon was appointed guardian of Zoe’s person and estate in an ex parte temporary guardianship order. At that time, Zoe was readmitted to the hospital. Subsequently, Linda filed a motion to vacate the ex parte order, attaching an affidavit sworn to by her son, Brent Johnson, who alleged that his grandmother Zoe had requested that her sons only visit her “one at a time,” but that they never complied with her wishes; that Zoe was in the hospital on a feeding tube on May 12, 2010, when her sons visited; that Zoe’s 1(¡medical-care providers recommended that she be taken home and placed in hospice care; that Zoe was given a week to ten days to survive; that Zoe Was taken to his mother’s house on May 13, 2010; and that his uncles arrived that night with the ex parte order-' and police, removed his grandmother from his mother’s home, and took her to Conway Regional .Hospital. He further alleged that his uncles’ issues with his grandmother and his mother began when his grandmother created a trust that divided her assets equally “between all six of her children and not just the four uncles.” Zoe remained in the hospital until she died on May 30, 2010.
On July 21, 2010, Farris, Corlis, Altis, and Leon, individually and as trustee of the Trust, and Leon’s wife Sheila Holliman filed a complaint against Garry, individually and in his capacity as trustee of the Trust, Brent Johnson, Linda, individually and as successor trustee of the Trust, and Linda’s husband James E. Johnson praying that the Trust be set aside because it was procured through undue influence and because Zoe lacked the'requisite capacity to make it. This complaint was dismissed on November 9, 2010, but was refiled on December 6, 2010, in its current form. An appeal was made to this court after the trial court granted the defendants’ motion to dismiss. See Holliman v. Johnson, 2012 Ark. App. 354, 417 S.W.3d 222 (where this court reversed and remanded the trial court’s-granting of defendants’ motion to dismiss, holding that a responsive pleading praying for dismissal “pursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure” did not preserve their Rule 12(b)(4) (insufficiency of process) and Rule 12(b)(5) (insufficiency of service of process) defenses). Upon remand. Corlis.and Altis non-suited their claims by order filed | January 17, 2013, leaving Farris, Leon, individually and as joint trustee, and his wife Sheila as plaintiffs/ appellants.
On November 3, 2014, a bench trial was held. The trial court heard testimony from appellants, opposing experts regarding Zoe’s capacity to execute the Trust, the attorney who prepared and witnessed Zoe’s execution of the Trust and accompanying documents, and Garry, The trial court also reviewed the videotaped execution of the Trust 'and the accompanying documents, which was recorded in Zoe’s hospital room on December 30, 2009. The trial court found no evidence of undue influence and found that Zoe had the requisite capacity to execute the trust instrument. Accordingly, appellants’ request for a return :of all funds held in a nontrust account that were allegedly acquired as the result of undue influence was denied and dismissed, as was appellants’ claim for breach of fiduciary duty and removal of trustees. The trial court found that Leon abdicated his duties as joint trustee and that there was no economic harm arising out of the creation and administration of the Trust. Finally, the trial court dismissed appellants’ complaints for defamation and outrage and denied and dismissed the request for injunctive relief. Appellants filed a timely notice of appeal, and this appeal followed.
II. Standard of Review
The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Rose v. Rose, 2013 Ark. App. 256, 427 S.W.3d 698; Winchel v. Craig, 55 Ark.App. 373, 934 S.W.2d 946 (1996). Arkansas appellate courts have-traditionally reviewed matters that sounded in equity de novo on the record with |7respect to factual and legal questions. Rose, supra, In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. A finding by a circuit court in an equity case will not be reversed unless it was clearly erroneous. Id.
Cason v. Lambert, 2015 Ark. App. 41, at 4, 454 S.W.3d 250, 253-54.
[A] finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all the evidence is left with a definite and firm conviction that a mistake-has been committed. Id. We also give, due deference to the superior position of the chancellor or circuit court to view and judge the credibility of the witnesses. Id.
In re Estate of Thompson, 2014. Ark. 237 at 6, 434 S.W.3d 877, 881.
III. Shifting Burden of Proof
Appellants argue that the trial court erred in three ways regarding its findings of mental capacity and undue influence, First, they claim that the trial court erred in failing to shift the burden of proof to appellees. This court has stated,
Ordinarily, the party challenging the validity of a will is required to prove by a preponderance of. the- evidence that the testator lacked mental capacity or was unduly influenced at the time the-will was executed. Bell v. Hutchins, 100 Ark.App. 308, 268 S.W.3d 358 .(2007). But in a case where a beneficiary procures the making of a will, a rebuttable presumption of undue influence arises that places on,the-,beneficiary the. burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will. Pyle v. Sayers, 72 Ark.App. 207, 34 S.W.3d 786 (2000).
Harbur v. O’Neal, 2014 Ark. App. 119, at 5, 432 S.W.3d 651, 656.
Appellants claim that appellees procured the creation of the Trust without informing appellants or the other brothers. They contend that this procurement was in contradiction to the prior actions of the family regarding Zoe’s estate planning.' Appellants contend that the: Trust enriches ap-pellees with property that they- would not otherwise have had a stake in — 159 acres belonging to Farris. Therefore, appellants contend that the trial court clearly erred in not shifting the burden of proof to appel-lees to overcome beyond a reasonable 18doubt the rebuttable presumption of undue influence and lack of mental capacity. Appellees argue that the trial court did shift the burden of proof, concluding that they overcame the rebuttable presumption that Zoe was unduly influenced and did not have the requisite mental capacity to execute her trust and deeds as required by law. . ,.
However, we hold that appellants’ argument is not' preserved for appellate review. Appellants did not claim at trial that appellees had the burden to prove beyond a reasonable doubt Zoe’s mental capacity and the lack of undue influence. In their argument before this court, appel-larits stated, “There was no finding by the trial court that the [appellees] had overcome beyond a reasonable doubt the rebut-table presumption of undue influence.” In Arkansas, it is -a well-settled rule that issues not raised'or ruled on in the circuit court will not be considered for the first time on appeal. See Wil'sdh v. Lindvall, 2013 Ark. App. 364, at 2, 428 S.W.3d 532, 533 (where appellants failed to preserve for appeal their argument concerning procurement and shifting of the burden of proof as it was -not presented nor ruled on by the circuit court); Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497 (where the issue of procurement was not preserved for review because it was not raised at trial).
IV. Mental Capacity
Second, appellants. claim that the trial court’s findings regarding mental ca pacity were clearly against the preponderance of the evidence. This court stated.
The requisite level of mental capacity to create a trust is defined as having “suffh, cient mental capacity to. retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it,, and to whom.” Rose [v. Dunn], 284 Ark. [42,] at 46, 679 S.W.2d [180,] at 182.
Harbur v. O’Neal, 2014 Ark. App. 119, at 6, 432 S.W.3d 651, 656.
jflAppellants contend that the evidence presented shows that Zóe did not have the requisite mental capacity to execute the trust. They rely on their expert’s opinion as a certified legal nurse consultant that, based on medical records, Zoe’s short-term and situational memory were both impaired on December 29-31, 2009. Appellants also point to Leon’s testimony that Zoe was- disoriented when the parties celebrated Christmas, as indicated by Zoe’s confusion over the grandchildren opening gifts that she thought were for her, despite her earlier instruction to Leon to buy gifts, from her, for the grandchildren. Appellants also contend that Zoe’s hearing and visual impairments were apparent. She stated during the videotaped execution of the Trust that Linda and Garry were listening for her. Appellants point to nine instances during the videotaped signing where they contend that Zoe demonstrated her inability to hear or comprehend. Appellants also rely on the evidence of Zoe’s having macular degeneration, which impaired her vision. Appellants contend that Zoe’s diminished cognitive functioning, compounded by her inability to hear and see, precluded her from comprehending what was occurring when she executed the Trust or demonstrating that she knew the extent of her property.
In contrast, appellees contend that the trial court’s finding that Zoe had the mental capacity to execute her trust and deed documents was not against the preponderance of the evidence. They note the evidence that Zoe directed Linda to contact the lawyer for purposes of preparing the Trust and related documents. Appellees contend that the videotaped recording of the execution of the Trust reflects that Zoe acknowledged the attorney’s verbal listing of her assets. Appellees maintain that the Trust and Zoe’s previous Will both divided her assets equally among her six children, and neither appellee gained any | ^advantage over the other siblings as a result of the trust. Appellees contend, that, despite her hearing deficit and macu-lar degeneration, their expert stated that the videotape reflected that Zoe was engaged and had understanding, and it was his opinion that Zoe was competent to execute ■ the Trust and deed documents. Finally, appellees point to the attorney’s testimony that -Zoe spontaneously asked him what would happen if Leon refused to act as trustee,' and this, solidified in his mind that Zoe was competent. Accordingly, based on our de novo review, and giving due deference to the superior position of the circuit court to view and judge the credibility of the witnesses, we hold that the trial court’s finding that Zoe possessed the requisite capacity to execute the Trust was not clearly erroneous.
V. Undue Influence
■ Third, appellants contend that the trial court’s findings of no undue influence were clearly against the preponderance of the evidence. This court stated,
The definition of “undue influence,” on the other hand, is influence “such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” Rose, 284 Ark. at 45, 679 S.W.2d at 182.
Harbur, supra, 2014 Ark. App. 119, at 6, 432 S.W.3d at 656-57.
Appellants contend that appellees exerted coercion or some other cause that deprived Zoe of her free agency in the disposition of her property, specifically 159 acres that they believe belonged to Farris. Appellants point to Leon’s “extensive” testimony regarding appellees’ efforts to exert “some other cause” over Zoe that led to her executing the Trust. They claim that appellees employed various methods to mold Zoe’s mind to induce her into executing the Trust. Appellants argue that appellees had insisted that Zoe remain under the influence of her prescription medication; that Linda began having Zoe sleep in the bed In with her in order to deny appellants access to Zoe; that Linda was overheard telling Zoe that appellants were trying to steal her money; that Linda would not let anyone else stay with Zoe in the hospital; that Linda called 9-1-1 in order to have law enforcement assist with removing appellants from Zoe’s home; and that Linda moved Zoe into her own home to deny appellants any opportunity to see Zoe before she passed away. Appellants maintain that appellees’ actions were because they wanted a stake in the 159 acres that belonged to Farris.
However, we agree with appellees’ contention that the trial court’s finding of no undue influence was not against the preponderance of the evidence. Appellees garnered no advantage to themselves as a result of the trust. Zoe’s assets under her Will would have been divided equally among her six children and her Trust directs that her assets be divided in such a way. Appellee Leon was named a joint trustee along with his mother and Garry. Also, Garry testified that his brothers visited Zoe later on the day she signed the Trust, and she told them about the Trust. He further testified that none of his brothers ever expressed to him that they thought Zoe was mentally incompetent. Finally, the trial court had the benefit of watching a twenty-minute video of Zoe signing the trust documents and deeds. Deference is given to the trial court to judge the credibility of witnesses. In re Estate of Thompson, supra. Accordingly, we affirm the trial court’s finding that Zoe was not unduly influenced.
Affirmed.
Abramson and Brown, JJ., agree.
. Appellants filed a motion to dismiss their claims of slander and outrage against James E. Johnson, Linda's husband, and Brent Johnson, Linda’s son. The trial court granted this motion and included its ruling in its final order. Therefore, Brent Johnson and James E. Johnson are not listed as appellees in this matter. | [
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HOWARD W. BRILL, Chief Justice
| ^Appellant Mahmood Ahmad, M.D., appeals an order of the Pulaski County Circuit Court dismissing with prejudice his complaint for declaratory judgment and injunctive relief and his motion for temporary restraining order. For reversal, Dr. Ahmad contends that the circuit, court erred in dismissing his complaint and that the circuit court erred in denying, on jurisdictional grounds, his request for a temporary restraining order. We affirm the circuit court’s order.
Dr. Ahmad is a physician licensed under the Arkansas Medical Practices Act, Arkansas Code Annotated sections 17-95-201 to -412 (Repl. 2010 & Supp. 2015) (the “Act”). A board certified anesthesiologist, he has practiced medicine in Pulaski County for' over fifteen years, specializing in pain management. As part of his practice, Dr. Ahmad regularly writes prescriptions for controlled substances.
|aThe Arkansas State Medical Board (the “Board”), which consists of fourteen members appointed by the Governor, has the authority to promulgate and put into effect rules and regulations as are necessary to carry out the purposes of the Act. Ark. Code Ann. § 17-95-303(2). In addition, pursuant to the Act, the Board may revoke an existing license or impose penalties when a physician has committed any of the acts or offenses defined as “unprofessional conduct.” Id. § 17-95-409(a).
To understand the issues on appeal in this case, it is necessary to briefly review the procedural history in two separate, actions arising from the same set of facts. In November 2012, the Board charged Dr. Ahmad with alleged violations of the Act related to his prescribing controlled substances to patients, his record keeping, and his patient monitoring. After two administrative hearings, in an order entered June 22, 2013, the Board found Dr. Ahmad in violation of the Act and Board regulations 2.4 and 2.6 and ordered him to take certain continuing education courses, undergo a record keeping audit, reimburse the Board for the, cost of its investigation, and pay a fine of $500 per count for his violation. On July. 5, 2013, Dr. Ahmad filed in the circuit court an administrative appeal of the Board’s order. See Ahmad v. State Medical Board, Pulaski Cty. Cir. Ct., No. 60CV-13-2691.
On December 3, 2013, while his administrative appeal was pending in the circuit Ucourt, Dr. Ahmad filed a complaint for declaratory judgment and injunctive relief against the Board and the Board’s chairman, Joseph M. Beck, M.D. (collectively referred to as the “Board”). See Ahmad v. Beck, Pulaski Cty. Cir. Ct., No. 60CV-13-4704. In his complaint, Dr. Ahmad requested that the circuit court (1) declare that Arkansas Code Annotated section 17-95-704(b)(3)(A) of the Chronic Intractable Pain Treatment Act, Arkansas Code Annotated sections 17-95-701 to -707 (“CIP-TÁ”), and Board regulations 2.4, 2.6, and 19 are unconstitutional and therefore null and void; (2) declare that the Board engages in conduct that exceeds its statutory authority in applying regulations 2.4, 2.6, and 19 to disciplinary actions against physicians practicing pain medicine; and (3) enjoin the Board from applying regulations 2.4, 2.6, and 19 to disciplinary hearings.
On January 3, 2014, the Board filed a motion to dismiss the complaint for declaratory and injunctive relief, contending that, because Dr. Ahmad’s exclusive remedy was an administrative appeal of the Board’s June 22, 2013 order, his complaint for declaratory and injunctive relief was barred as a matter of law. The Board asserted that Dr. Ahmad had the opportunity in the June 2013 administrative hearings to raise his constitutional arguments and to obtain rulings on those arguments. The Board added that Dr. Ahmad had the opportunity to obtain judicial review of all rulings contained in the Board’s June 22 order. Dr. Ahmad responded and argued that his complaint complied with the requirements of Arkansas Code Annotated section 25-15-207 (Repl.2004) of the Arkansas Administrative Procedure Act. He also argued that, because he had no genu ine opportunity for relief, the circuit court had | jurisdiction over his complaint pursuant to the declaratory-judgment statute Arkansas Code Annotated section 16—111—104 (Repl.2006). Finally, he argued that it would be futile to raise his constitutional issues-in his administrative appeal to the circuit court because he did not raise those issues in the administrative hearings before the Board.
On September 4, 2014, Ahmad filed a motion for temporary restraining order in which he asked the circuit court to issue an order prohibiting the Board from pursuing any administrative action against him in separate cases pending against-him until both his administrative appeal and .his declaratory and injunctive action were concluded. .On September 30, 2014, after a hearing on the complaint for declaratory and injunctive relief .and the motion for temporary restraining order, the circuit court entered an order granting the Board’s motion to dismiss, denying Dr. Ahmad’s motion for a restraining order, and dismissing the complaint with prejudice. The circuit court noted in its order that Dr. Ahmad’s complaint for declaratory and injunctive relief was filed oh December 10, 2013,' which was after the June 2013 administrative hearings; that in addition to filing the complaint, Dr. Ahmad had also filed an administrative appeal of the Board’s disciplinary action against him; and that the administrative appeal remained pending. The circuit court ruled that Dr. Ahmad was barred from seeking declaratory relief on the constitutionality of hBoard regulations 2.4, 2.6, and 19 and that he was required to exhaust his administrative remedies before seeking declaratory relief from the court. Dr. Ahmad now appeals the order dismissing with prejudice his complaint, for declaratory judgment and injunctive relief and his motion for temporary restraining order.
To dispose of this appeal, we must answer the following question: Under the facts of this case, was Dr. Ahmad permitted to- file a separate declaratory action to raise claims that he could have raised'in the proceedings before the Board? The circuit court answered that question in the negative. We consider questions of law de novo. See Tucker v. Sullivant, 2010 Ark. 170, 370 S.W.3d 812.
Dr. Ahmad contends that, even though his administrative appeal was pending, he was entitled to bring a separate action for declaratory judgment pursuant to Arkansas Code Annotated section 25-15-207 of the Arkansas Administrative Procedure Act and Arkansas’s declaratory-judgment statute, Ark. Code Ann. § 16-111-104. Section 25-15-207 states, in relevant part,
(a) The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application; injures or threatens to injure the plaintiff in his or her person, business, or property.
(d) A declaratory judgment may be rendered whether or not the plaintiff- has requested the agency to pass upon the validity or applicability of the rule in question..
Section 16-111-104 states,
Any person interested under a deed, will, -written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, |ficontract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
The Board responds that the exhaustion-of-administrative-remedies doctrine applies; therefore, Dr. Ahmad was not entitled to bring a separate declaratory action. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Hotels.com, LP v. Pine Bluff Advertising & Promotion Comm’n, 2013 Ark. 392, 430 S.W.3d 56; see also McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006) (stating that a basic rule of administrative procedure requires that an agency be given the opportunity to address a question before a complainant resorts to the courts). The failure to exhaust administrative remedies is grounds for dismissal. McGhee, 368 Ark. 60, 243 S.W.3d 278.
Declaratory-judgment actions are intended to supplement,’ rather than replace, ordinary actions. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). Accordingly, litigants must exhaust their administrative remedies before seeking a declaratory judgment. Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); see also Rehab Hosp. Servs. v. Delta-Hills, 285 Ark. at 399, 687 S.W.2d at 841-42 (“It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief.”) (quoting W. Anderson, Actions for Declaratory Judgments, § 204, at 433 (1951)).
In the instant case, Dr. Ahmad did not pursue the administrative procedure to its final conclusion. Rather, he filed a separate complaint for declaratory and injunc-tive relief while administrative proceedings were pending.
Still, there are exceptions to the exhaustion-of-administrative-remedies doctrine. Hotels.com, LP, 2013 Ark. 392, 430 S.W.3d 56. For example, exhaustion of remedies is not required when no genuine opportunity for adequate relief exists or when irreparable injury will result if the complaining party is compelled to pursue administrative remedies. Id. Exhaustion of remedies is also not required when an administrative appeal would be futile. Id.
Citing Arkansas Department of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006), Dr. Ahmad claims that the futility exception applies to his case. In Howard, homosexual plaintiffs challenged a regulation promulgated by the Child Welfare Agency Review Board, which provided that no person could serve as a foster parent if any adult member of that person’s household was . a homosexual. The defendants argued that the plaintiffs failed to exhaust their administrative remedies because they did not challenge the regulation before the board prior to filing suit for declaratory judgment. This court disagreed:
Appellees, and all other similarly situated individuals, are completely barred from becoming foster parents because of this regulation. Much like in [McEuen Burial Assocs. v. Arkansas Burial Ass’n Board, 298 Ark. 572, 769 S.W.2d 415 (1989)], it is obvious that the application of the regulation injures all prospective foster parents who are (1) homosexual or (2) have an adult homosexual living in the prospective foster home. Thus, Ap-pellees were not required to exhaust all administrative remedies prior to pursuing their cause of action against DHS and the Board. See Ark. Code Ann. § 25-15-207; Cummings [v. Big Mac Mobile Homes, Inc.], 335 Ark. 216, 980 S.W.2d 550 [(1998)]; Ford v. Arkansas Game & Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998); McEuen, 298 Ark. 572, 769 S.W.2d 415; Barr [v. Ark. Blue Cross & Blue Shield], 297 Ark. 262, 761 S.W.2d 174 (1988).
Howard, 367 Ark. at 61, 238 S.W.3d at 5.
Because the regulation at issue in Howard completely barred the plaintiffs from becoming foster parents, any attempt to pursue administrative remedies would have been futile. In contrast, the statutes and regulations that Dr. Ahmad seeks to challenge in this case do not completely bar any class of physicians from a certain act. Here, Dr. Ahmad failed to pursue the administrative remedy afforded to him. In short, Dr. Ahmad’s conundrum is of his own making. “Litigants may not, by refusing or neglecting to submit issues ... to administrative agencies, bypass them and call upon the courts to determine matters properly determinable originally by the agencies.” 2 Am. Jur. 2d Administrative Law, § 452. We hold that, under the facts of this case, Dr. Ahmad was not permitted to file a separate declaratory action to raise claims that he could have raised in the proceedings before the Board.
Finally, Dr. Ahmad contends that the circuit court erred in denying, on jurisdictional grounds, his request for a temporary restraining order. In his motion, Dr. Ahmad sought an order prohibiting the Board from pursuing any administrative action against him in several separate cases (or any ease) until his administrative appeal and the declaratory and injunctive action were concluded. The Board responded that the circuit court was without jurisdietion | i,to enjoin the Board from performing the duties delegated to it by statute. The circuit court agreed and denied the motion.
Generally, courts are without jurisdiction to enjoin agencies from performing duties delegated to them by statute. Ark. Prof'l Bail Bondsman v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002). In Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980), this court noted that the court has jurisdiction to enjoin state agencies from acts that are ultra vires or beyond the scope of their authority and that an agency may be enjoined if it is about to perform an act in bad faith, arbitrarily, capriciously, wantonly, or injuriously. The court also noted that, on the other hand, a court is “without jurisdiction to issue an injunction preventing a board or commission from hearing a case where the board or commission has jurisdiction.” Id. at 338, 595 S.W.2d at 938. Because the Board has jurisdiction to initiate administrative proceedings against Dr. Ahmad, see Ark. Code Ann. § 17-95-410, the circuit court did not err in denying Dr. Ahmad’s motion.for temporary restraining order on jurisdictional grounds.
Affirmed.
Special Justice Curtis Hitt joins.
Hart, J., concurs.
Baker, J., not participating.’
. Specifically, the Board found that Dr. Ahmad violated regulation 2.4 in that he prescribed an excessive. amount of controlled substances for his patients, The Board also found that Dr. Ahmad violated regulation 2.6 in that he prescribed Schedule medication for pain not associated with malignancy or terminal illness for more than six months and without keeping proper records and monitoring the condition of his patients to justify the ongoing prescribing of the Schedule medication.
. Regulation 19 governs pain-management programs.
. At the hearing, the circuit court first heard the complaint for declaratory and injunctive relief and the motion for temporary restraining order. Subsequently, the circuit court heard Dr. Ahmad’s administrative appeal and affirmed the Board's decision. Although Dr. Ahmad appealed the circuit court’s decision in the administrative appeal to the court of appeals, the appeal was dismissed on Dr. Ahmad’s motion on March 11, 2015. See Ahmad v. Beck, Ark. Ct. App., No. CV-15-31.
. In this case, it appears that Dr. Ahmad’s attorney failed to raise the constitutional issues at the administrative hearings before the Board. We have long held clients responsible for the acts of omission or commission of their attorneys. Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997); Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994). | [
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KENNETH S. HIXSON, Judge
| Appellants William Dunn and Jamie Dunn appeal from the termination of their parental rights to their two daughters, I.D., age three, and .K.D., age one. Jamie also appeals from the termination of her parental rights to G.L., her five-year-old son from a previous relationship. On appeal, William and Jamie challenge the sufficiency of the evidence supporting the termination of their parental rights. We affirm.
We review termination of parental rights cases de novo. Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence ‘ is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
In March 2014, William and Jamie were living in a hotel with the two older children. The youngest child, K.D., was born on March 7, 2014.
On March 17, 2014, appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody of all three children. Attached to the petition was an affidavit of a family service worker stating that K.D. had tested positive for marijuana at birth and was diag nosed with polycythemia, Upon .being investigated, Jamie admitted to smoking marijuana to help relieve contraction pains while pregnant with K.D. Both parents were drug screened, and both William and Jamie tested positive for marijuaha and methampKetamine. Jamie also tested positive for PCP. K.D. was released from the hospital on March 14, 2014, ahd DHS took an emergency hold of "all three children. On March 17, 2014, the trial court entered an order for emergency DHS custody.
The trial court entered a probable-cause order on March 19, 2014. In the probable-cause order, the trial court ordered that the parties undergo a psychological evaluation, Issubmit to random drug screens, and submit themselves to a drug-arid-alcohol assessrrient and follow any recommendations. The parties were also ordered to .maintain stable housing and employment.
On May 7, 2014, the trial court entered an order adjudicating the' children dependent/neglected based on the trial court’s finding that the children had been ¡subjeetr ed to parental unfitness and neglect due to their parents’ drug use. The adjudication order noted that both. I.D. and G.L. had •tested positive on a hair-follicle test for amphetamines, meth, cannabinoids, and THC. The goal of the case was reunification.
• A review order was entered on August 27, 2014, wherein the trial court found that William and Jamie were mostly in compliance with the case plan, and that William had a good job and needed to keep it. However, on February 11, 2015, the trial court entered a review/permanency-planning order stating that William had lost his job and had’ spent forty-five days in jail for failure to pay child support for his child from a prior relationship. That order noted that Jamie had been noncompliant with the case plan, and that although she had obtained employment at a discount store, she was fired two weeks later and was currently unemployed. The trial court also found that the parents had failed to maintain stability and that both had recently tested positive for THC. The goal of the case was changed to termination of parental rights and adoption.
DHS filed a petition .to terminate both parents’ parental rights on April 2, 2015. The termination hearing was held on May 4, 2015.
On June 9, 2015, the trial court entered an order terminating William’s and Jamie’s parental rights as- to the -three children. The trial court found by clear and convincing ^evidence that termination.of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children, would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9—27—841(b)(3)(A)(i) & (ii) (Supp. 2015). The trial court also found, with respect to both parents,' clear and convincing evidence of the following two statutory: grounds .under subsection (b)(3)(B):
(vii)(a) That,. other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the' juvenile in the custody of the parent;
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) ... [A] determination has been-made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
With respect to Jamie only, the trial court further found that DHS proved statutory grounds under subsection (b)(3)(B)(i)foj, which provides:
That a juvenile has been adjudicated by the cotirt to be dependdnt-neglected ahd has continued to be 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.
. Dr. Paul DeYoub, a forensic psycholo-. gist, testified at the termination hearing. Dr, DeYoub performed psychological evaluations on both William and Jamie. He Isdiagnosed William and Jamie with cannabis-use disorder, .and his greatest concern was their drug use apd denial of the same. Dr, DeYoub was also concerned about their lack of stability. Dr. DeYoub. stated that both William and Jamie were capable of maintaining employment.
Jamie testified that, since the children were removed from her custody, she has had four different residences, including living in a hotel, living with her mother, and living with a friend, . Jamie also stated that she was unemployed. and had not worked for almost a year. Jamie acknowledged that she had a drug .problem, and she tested positive for THC on hair-follicle tests administered in January and March of 2015. However, Jamie denied any illegal drug use during 2015, explaining that the positive drug tests were- probably the result of living with an every-day marijuana user. Jamie indicated that she previously had her parental rights terminated, to four other children due to her drug use. She also stated that she gave birth -to another child six weeks before the termination hearing.-
William testified that he has a drug problem and that his drug of choice is marijuana. However, he stated that he is seeking'help for his drug problem and has not used marijuana since the children were removed from their custody in March 2014.- However, William tested positive for THC on a urine screen in December 2014,- and again tested positive on a hair-follicle test in March 2015. He blamed the positive results on being around other people who use drugs,
. | (William acknowledged having multiple jobs and residences since this case was. opened. He. was presently working as a mechanic, and he and Jamie had been living in the same residence for a little more than three months. William testified:
As for what I’m asking the court today, I know it’s impossible to ask for the children.to Re returned today. I mean, that’s not fathomable. We have other stuff we need to work through; I want the opportunity to prove that we are going to continue to be stable.
Latasha Gause, a family-service worker, testified that both parents had completed outpatient drug counseling in August 2014. However, since that time, both of them have had positive drug screens. Latasha indicated that both parents had missed numerous scheduled visits with the children, and she said that until recently they had not had a stable housing situation. Latasha testified that the children need permanency, and she recommended termination of parental rights.
Brenda Keith is an adoption specialist for DHS. Brenda testified that there were no factors that would prohibit adoption of the three children and that the likelihood of adoption was high.
In this appeal, William challenges each of the statutory grounds found by the trial court in support of the termination order. In addition, both William and Jamie chal-lengejjthe trial court’s finding that termination of their parental rights was in the best interest of the children.
William contends that none of the statutory grounds supported termination of his parental rights, asserting that he has made progress since the case began and is presently employed with stable housing. Although William tested positive for THC in December 2014 and March 2015, he notes that on numerous other occasions he had negative drug screens. He submits that this is not a case where he chose drugs over his children as found by the trial court in the termination order, and he asserts that he had complied with the case plan and was working toward reunification with the children.
Only one statutory ground must be proved to support the termination. Willingham v. Ark Dep’t of Human Servs., 2014 Ark. App. 568, 2014 WL 5382622. We conclude that the trial court committed no error in finding that the children had been subjected to aggravated circumstances pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(q)(3) because there was little likelihood that services to the family would result in successful reunification. Although William testified that he no longer uses drugs, he tested positive for THC less than seven weeks before the termination hearing, and the trial court specifically found William not credible. Although William was employed at the time, of the termination hearing, his employment and housing situation had been sporadic throughout the fourteen months since the children were removed. William acknowledged at the termination hearing that it was impossible to ask for the return of his children at that time, and on this record we hold that lathe trial court did not clearly err in finding that William had subjected his children to aggravated circumstances.
Both William and Jamie also argue that termination of parental rights was not in the best interest of the children. Appellants acknowledge their addiction to drugs, but assert that each of them has made progress and complain that, if being a recovering addict is the standard by which a parent is gauged, no child of a recovering addict could ever be returned to the home. William and Jamie also contest the trial court’s finding that the children would be at risk of potential harm if returned to their custody. Appellants note that Jamie has recently had another child who was not removed from their custody, and contend that if that baby is not at risk in their care, neither would be the older three children.
We hold that the trial court did not clearly err in finding that termination of appellants’ parental rights was in the best interest of the children. Although the most recent child born to the appellants remains in their custody, our inquiry focuses only on the best interest of the three children involved in this appeal. The evidence on potential harm must be viewed in a forward-looking manner and considered in broad terms, and the trial court is not required to find that actual harm will result or to affirmatively identify potential harm. Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251. In addition, we have held that, a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849.
In this case both parents, whom the trial court specifically found to be not credible, tested positive for illegal drugs a year after the removal of their children. William’s |semployment history has been inconsistent, and Jamie remains unemployed despite having the ability to work. Appellants’ housing situation has also been unstable. Both parents visited the children only sporadically, and there was evidence that the children were doing very well in foster care and were highly adoptable. William acknowledged at the termination hearing that the children could not yet be returned to their parents’ home.
Contrary to the appellants’ argument, the trial court did not terminate parental rights based on their alleged addiction to marijuana. The trial court terminated parental rights due to the fact -that William had been incarcerated, neither parent could sustain consistent employment or housing, both tested positive for marijuana shortly before the termination hearing, and William admitted that after fourteen months of DHS involvement the parénts were unable to accept custody of the children. Considering the evidence before the trial court, we conclude that the trial court’s finding that termination was in the children’s best interest was not clearly erroneous.
Affirmed.
Harrison and Vaught, JJ,, agree.
. G.L.’s putative father abandoned G.L., and his parental rights were also terminated. G.L.’s putative father did not appeal,
. In appellant’s brief, Jamie concedes that there were indisputable statutory grounds proved against her because she had her parental rights involuntarily terminated as to four siblings of the children at issue. See Ark. Code Ann. § 9—27—341(b)(3)(B)(ix)(a)(4) (Supp. 2015). Although the trial- court did not make a finding on this ground, it was alleged in DHS's termination petition and it was proved. See Fenstermacher v. Ark. Dep't of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483. | [
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Donald L. Corbin, Justice.
Appellant, ABC Home Health of Arkansas, Inc., appeals the order of the Pulaski County Circuit Court affirming the decision of Appellee, Arkansas Health Services Commission, to deny Appellant’s applications for permits to operate a home health services company in numerous Arkansas counties. This appeal requires our interpretation of the statute on the powers and duties of the Arkansas Health Services Commission and the Arkansas Health Services Agency, Ark. Code Ann. §§ 20-8-103 and 20-8-104 (Repl. 1991). Therefore, jurisdiction is in this court pursuant to Ark. Sup. Ct. R. l-2(a)(17)(vi). We cannot reach the merits of the appeal, however, due to a flagrantly deficient abstract. Accordingly, we affirm pursuant to Ark. Sup. Ct. R. 4-2 (a) (6).
Appellant makes two arguments for reversal. First, Appellant contends the Commission exceeded its statutory authority when it denied Appellant’s applications based on Appellant’s inability to demonstrate need. Second, Appellant contends alternatively that the Commission arbitrarily and capriciously applied its review criteria and methodology for determining need when it denied Appellant’s applications. On review of an agency decision, the circuit court is limited to a review of the evidence to determine whether there was substantial evidence to support the agency’s decision, and on appeal, this court’s review is similarly limited. Beverly Enter.—Ark., Inc. v. Health Servs. Comm’n, 308 Ark. 221, 824 S.W.2d 363 (1992). To set aside the Commission’s denial of Appel lant’s permits as an arbitrary and capricious agency decision, Appellant must demonstrate that the decision was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. Id.
We cannot address the merits of Appellant’s arguments because we do not have an abstract of the Commission’s decision. Although the abstract does contain a summary of the trial court’s decision to affirm the Commission’s decision, that is not sufficient for our review as it is the Commission’s decision that is at issue on appeal. Id. It is impossible for us to determine whether the Commission’s decision exceeded the scope of its statutory authority or whether the Commission’s decision was arbitrary and capricious when we do not know what the Commission’s decision was or the factors that led to it. The abstract of the trial court’s decision lends no clarity in this regard. The Commission’s decision is therefore necessary for an understanding of the questions presented for our decision, and its omission from the abstract renders the abstract flagrandy deficient. Rule 4-2 (a) (6). We have said that “[w]hen an abstract’s deficiencies are so flagrant that a decision is well nigh impossible, we will affirm.” Carmical v. City of Beebe, 316 Ark. 208, 212, 871 S.W.2d 386, 389 (1994) (quoting Haynes v. State, 313 Ark. 407, 409, 855 S.W.2d 313, 315 (1993)). Accordingly, we affirm the order of the circuit court. | [
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Robert H. Dudley, Justice.
In January 1994, the Arkansas State Highway Commission condemned .47 acre in fee, along with the access routes, belonging to Roland and Barbara Barker and Union State Bank, mortgagee, in order to widen Highway 167 to three lanes south of El Dorado. The condemned land was a part of a 10.16-acre tract purchased by the Barkers in 1992 for $20,000. A little over seven acres of the tract were timberland and not suitable for industrial or commercial use, and three acres were suitable for commercial or industrial use. The .47 acre condemned is in the three acres that are suitable for commercial or industrial use. Before the taking, the Barkers constructed a metal building in the northeast corner of the three acres. The .47 acre is between the metal building and the highway. At the time of the taking, the Commission deposited with the court the amount it estimated to be just compensation, $1,450. The Barkers denied that $1,450 was just compensation and asked for adequate compensation. Ultimately, a jury returned a verdict for $15,100. The Commission appeals. We reverse and remand for a new trial.
The Commission timely filed a motion in limine asking the court to prohibit, among other things, the introduction of evidence proving the cost to cure damages to the residual property, if the cost was in excess of the decrease in the market value of the property taken and if the cost constituted a substantial betterment to the property. In its motion the Commission specifically alleged that the Barkers’ appraisal report contained two estimates, one for $6,800 and one for $7,875, which when averaged was $7,300, for installation of a circular drive on the residual tract. An additional $3,000 was added for maintenance of the circular driveway, which brought the total betterments to $10,300. The Commission pointed out that, before the taking, the tract had sixteen feet of unpaved driveways that provided access to the highway and that the Commission’s construction plans, filed with the court, required it to replace the unpaved driveways with two forty-foot asphalt driveways. Finally, the Commission alleged that if the utility of the residual property was diminished by the taking, that loss constituted the element of damage, and not the cost of a circular driveway, which was a betterment and which cost far more than the loss to the remaining property, especially when the Commission intended to replace sixteen-feet-wide unpaved driveways with forty-feet paved driveways. On appeal, the Commission contends that the trial court erred in allowing evidence of the $10,300 loss to be introduced. The Barkers do not contend that evidence of the cost to cure damages was admissible, but rather they respond that the Commission is “simply mistaken that testimony was offered as costs to cure damages which constitute a betterment on the residual property.” We hold the trial court erred in allowing the evidence.
A landowner who has his land condemned is entitled to just compensation. City of El Dorado v. Scruggs, 113 Ark. 239, 168 S.W. 846 (1914). However, this does not mean that a landowner is entitled to be unjusdy enriched at the expense of the public purse. See United States v. 158.24 Acres of Land, 696 F.2d 559, 564 (8th Cir.1982). There are three recognized formulas for measuring just compensation in partial-taking cases: (1) the value of the part taken; (2) the value of the part taken plus the damages to the remainder; (3) the before- and after-value rule. Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967); see also Arkansas State Highway Comm’n v. Jones, 256 Ark. 40, 505 S.W.2d 210 (1974). In Young, we wrote that “the difference between the market value of the whole tract before the taking, and the market value of that part which remains after the taking, less any enhancement peculiar to the lands” has long been the measure of damages in partial-taking cases. 242 Ark. at 814, 415 S.W.2d at 576-77.
In the present case, the Barkers’ real-estate-appraisal witness, Peter Emig, testified that the .47 acre taken did not have a “single highest and best use,” but rather “that which was a part of the taking had a commercial/industrial type use because of elevation and proximity to the highway.” Emig testified that he used three approaches in determining the before-taking value: the cost approach; the market approach; and the income approach. He testified that, in this case, the market approach was the best indicator of value. Using the market approach, he determined that the before-taking value was $105,000. He also testified that the market approach was the best indicator of value after the taking, and that value was $89,900, leaving a difference of $15,100. The trial court allowed his appraisal report in evidence. In his report, the witness used three comparable sales to determine after-taking value, but from each of the three comparable sales he deducted “$10,300 for the drive installation and maintenance.” Thus, Emig deducted the $10,300 cost and maintenance of the circular drive in order to reach the after-taking value. Because of this error, we reverse and remand for a new trial.
We now address the remaining points of appeal that will likely arise upon retrial. The Barkers, in cross-examination of a Commission employee, asked about an appraisal of a nearby tract. The Commission objected because the tract had not been used by either party as a comparable sale, and thus it was not relevant. The Commission additionally objected because the appraisal was prepared for the Commission’s condemnation offer on the other tract, and offers to buy are not competent evidence of the market value. The trial court erroneously overruled the objections. The appraisal of the nearby tract, prepared by a witness not present at trial, was prepared for determination of the amount to be deposited by the Commission for the taking of the other tract. Even if the court deposit made by a condemnor might be considered a “sale,” a point we do not decide, a sale made by a condemnor is not deemed a voluntary transaction. “[S]ales to one having the right of eminent domain do not ordinarily fall in the category of voluntary sales in the ordinary course of business and, consequently, are not fair criteria of value for purposes of comparable sales in determining the just compensation due in eminent domain actions.” Arkansas State Highway Comm’n v. First Pyramid Life Ins. Co., 265 Ark. 417, 424, 579 S.W.2d 587, 591, reh’g denied (1979). In Yonts v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S.W.2d 886 (1929), we explained:
“What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of the value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons, such sales do not seem to be competent evidence of the value in any case, whether in a proceeding by the same condemning party, or other cases.” Lewis on Eminent Domain (3 Ed.) vol. 2, § 667.
Id. at 698-99, 17 S.W.2d at 887.
The Commission also contends that the trial court erred in not striking Roland Barker’s testimony about value of the tract condemned because he failed to state any reasonable ground for his opinion. Upon retrial, Barker may be able to state better grounds for his opinion, since he has lived in the area for fifty years and since he and his wife recendy purchased the tract involved. Because the same proof may not develop upon retrial, we do not address the argument. Missouri Pac. R.R. Co. v. Arkansas Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).
The Commission asks us to reverse this case with instructions for remittitur to the amount of $1,450, the amount of its appraisal and the amount of its deposit. We decline to order remittitur and instead order a new trial. We have examined both the landowners’ and the Commission’s proof of values and have concluded that the appropriate amount of damages is still of such question that an order of remittitur is not appropriate. One factor causing a question is that the Commission’s proof determined the values as of the date of taking, January 1994, but the landowners’ appraiser valued the property as of April 14, 1995, over fifteen months after the taking. The measure of damages in partial-taking cases is the difference between the market value of the whole tract before the taking and the market value of that part which remains after the taking, less any enhancements peculiar to the lands. Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967). Here, the testimony showed that a $10,000 concrete slab was poured on the landowners’ three-acre commercial land in the intervening fifteen months and that the landowners’ proof took that expenditure into consideration. We do not know if there were other such enhancements or betterments and thus are unable to determine an appropriate amount of remittitur.
Reversed and remanded.
Newbern and Corbin, JJ., dissent.
David Newbern, Justice.
The point on which the majority opinion bases reversal of the jury’s verdict and the Trial Court’s judgment is the inclusion in Mr. Emig’s appraisal of the $10,300 figure relating to the need for a circular driveway on the Barkers’ property.
According to Mr. Emig’s appraisal report and his testimony, he settled on the market value approach to evaluation of the Barkers’ property before and after the taking. A part of the loss of market value, he testified, is loss in utility of the property.
Mr. Emig figured the after-taking value of the Barkers’ land on the basis of comparable sales. To the value of the land taken, he added value for other land that would remain in the Barkers’ tract as well as for improvements on the tract. He subtracted the $10,300, which amounted to the cost and maintenance of a circular drive.
Mr. Emig’s testimony indicated that, prior to the taking, trucks had been able to enter the property and unload large items using fork lifts at the business entrance but that after the taking they would no longer be able to do so. The circular drive would be needed to permit that use to continue. Although he used the cost approach to determine that aspect of the reduction in the property’s market value, I see nothing exceptionable about it.
The fact that the Highway Department planned to widen the sixteen-foot-wide gravel-covered culvert entrances to the property to forty-foot ones covered with asphalt was not shown to affect the problem of the reduction in utility, which Mr. Emig said would occur as a result of the taking of the land right at the front of the Barkers’ business. I would affirm the judgment based on the jury’s verdict.
I respectfully dissent.
Corbin, J., joins. | [
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Per Curiam.
Petitioner, Sherman Noble, by his attorney, Gail Anderson, has filed a motion for belated appeal. The attorney has acknowledged that it was her responsibility to give a timely notice of appeal.
We find that such an error, admittedly made by the 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). Accordingly, we grant the motion and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Appellee Central Flying Service, Inc., is in the business of buying, selling, and leasing aircraft. Relevant to this case, Central purchased five airplanes which it held for resale. Under Ark. Code Ann. § 26-52-409 (Supp. 1995), Central was authorized to rent or lease these five airplanes for a period not to exceed one year from the date of purchase, and during that one-year period, it was exempt from paying a sales or use tax. None of the airplanes were resold until more than one year after their purchase. As a consequence, appellant Department of Finance and Administration assessed gross receipts tax on Central’s purchase of the aircraft and requested payment. Central responded that, while § 26-52-409 established Central’s liability for sales tax on the aircraft purchases at the end of the one-year period, the tax was not actually payable until each airplane was sold to another purchaser.
After disputing payment of the tax assessment, Central paid the assessment under protest and filed its complaint for refund in the Pulaski County Chancery Court, which held in Central’s favor. DF&A appeals the chancehor’s determination, and its sole argument for reversal asserts that § 26-52-409 provides that the gross receipts tax on the purchase of an airplane used for rental or charter service and held for more than one year without resale must be paid immediately after the lapse of one year from the date of purchase. We conclude DF&A’s argument is correct; therefore we reverse the chancellor.
DF&A’s and Central’s arguments center on their respective interpretation of § 26-52-409, but we first allude to other statutory gross-receipts tax provisions which are helpful to an understanding of the terms and provisions contained in § 26-52-409. Thus, we initially note that the sale of all tangible personal property is generally taxable unless an exemption applies. Ark. Code Ann. § 26-52-301 (Supp. 1995). With respect to a purchaser regularly engaged in the business of reselling items purchased, a sale for resale exemption is provided which relieves him of paying tax on such purchases. See Ark. Code Ann. § 26-52-401 (12)(A) (Supp. 1995). However, if that purchaser withdraws and uses an item from his inventory rather than resell it, such an event constitutes a withdrawal from stock and the purchaser is deemed the consumer. Georgia Pacific Corp. v. Lay, 242 Ark. 428, 413 S.W.2d 868 (1967). Items withdrawn from stock become subject to gross-receipts tax, usually based on the purchase price of the items used. Ark. Code Ann. § 26-52-103(a)(4) (Supp. 1995). Once an item is withdrawn from stock, the protection of the resale exemption is lost, and the tax is due on or before the 20th of the month following the month in which the items or goods were withdrawn. Ark. Code Ann. § 26-52-501 (Supp. 1995).
In 1975, the General Assembly enacted § 26-52-409 which was obviously intended to give aircraft dealers, such as Central, some tax relief. Before enactment of § 26-52-409, a dealer who purchased a plane exempt from tax as a sale for resale, but who withdrew it from inventory for use in his business would have been required to pay the tax based on the purchase price of the plane, and the tax was due in the month following the plane’s withdrawal from inventory. After § 26-52-409 was enacted, an aircraft dealer who purchases a plane for resale can now use it for rental or charter service without payment of sales or use tax for a period not to exceed one year from its purchase date. See § 26-52-409(a)(l). The full relevant text of § 26-52-409 reads as follows:
(a)(1) Any person . . . engaged in the business of selling aircraft in this state . . . may purchase aircraft exempt for resale and use the aircraft for rental or charter service without payment of sales or use tax for a period of not to exceed one (1) year from the date of purchase of the aircraft.
* * *
(b) The use of the aircraft for rental or charter during the applicable one-year . . . holding period . . . shall not constitute a withdrawal from stock, and the purchaser shall not be required to pay the sales tax on the purchase price of the aircraft held in stock and used for such purposes.
(c) The aircraft purchaser shall collect and remit gross receipts and short-term rental tax on the rentals and shall subsequently collect and remit the gross receipts tax on the aircraft at the time of subsequent sale in the manner required by law.
(d) If the purchaser fails to sell the aircraft during the applicable holding period, the purchaser shall be liable for sales or use tax on his purchase price of the aircraft.
Provision (b) above provides that an aircraft dealer’s renting or chartering a plane during the prescribed one-year holding period does not constitute a withdrawal from stock, and he is not required to pay the sales tax on the plane’s purchase price. However, under (d) above, if the dealer-purchaser fails to sell the aircraft during the one-year holding period, he shall be liable for the tax based upon the price he paid for the aircraft. Central argues that, under provision (d), it becomes liable for the sales tax based upon its purchase price of the aircraft, but it disagrees that it must remit payment immediately after its liability accrues. Instead, Central argues provision (c)’s language suggests such taxes must be collected and remitted at the time of the subsequent sale. Central further submits that, since the airplanes at issue were not sold during the assessment period in this case, the chancellor correcdy held DF&A prematurely imposed and collected tax from Central. Central contends its interpretation of § 26-52-409 is supported by DF&A’s own regulation, Gross Receipts Tax Regulation 14(F), which reads as follows:
F. AIRCRAFT RENTAL
1. Any person engaged in the business of selling aircraft in Arkansas who holds aircraft for resale in stock, may rent or use the aircraft in a charter service operated by that person for a period of one year from the date of purchase of the aircraft without remitting the tax on the aircraft so used. When the aircraft is eventually sold, however, the tax must be remitted at the time of sale. If the aircraft is sold within the one year period, the tax shall be computed on the actual sale price of such aircraft or the price paid for the aircraft by the seller, whichever is greater. If a year passes and the rented or chartered aircraft has not been sold, then the tax must be remitted by the person engaged in the business of selling aircraft in Arkansas on his purchase price.
In sum, Central claims that the only mention in § 26-52-409 as to when its tax liability must be paid is in provision (c) where it refers to “the time of subsequent sale.” It also refers to GR14(F) language which provides, “When the aircraft is eventually sold, however, the tax must be remitted at the time of sale.” Thus, Central argues DF&A must await Central’s sale of these planes before collecting the taxes that have accrued on them.
Central’s argument tends to ignore that the exemption specifically awarded under § 26-52-409 is not to exceed one year from the date Central purchased the five airplanes in issue. That exemption is specifically provided in § 26-52-409(a)(l) and for that one-year period, Central’s rental and lease of those aircraft did not constitute a withdrawal from stock, and therefore it was not required to pay the sales tax on the purchase price of the aircraft. Inferentially, that exemption ends and the airplanes are considered a withdrawal from stock when they have not been resold after the prescribed one year. Accordingly, the general gross-receipts tax provision, § 26-52-501, then becomes applicable, making Central’s tax due on or before the 20th of the month following the end of the one-year period. This interpretation of § 26-52-409 is consis tent with DF&A’s GR 14(F)(1). The regulation first notes that a person, holding an aircraft for resale, may rent or use it for one year from the date of purchase without remitting the sales tax and then provides, if a year passes and the rented or chartered aircraft has not been sold, then the tax must be remitted.
Finally, we should point out that Central’s reading of § 26-52-409 tends to blur the statute’s plain language. For example, Central argues the provision (c) language, “the aircraft purchaser shall collect and remit the gross-receipts tax on the aircraft at the time of subsequent sale,” applies to the sales of aircraft made both during and after the one-year holding period. Again, we must disagree. First, if we accepted Central’s interpretation, Central could avoid payment of any sales tax it owed on its five planes simply by not reselling them. Obviously, the General Assembly never intended such a consequence, and this court is duty bound to reject any interpretation of a statute that results in absurdity or injustice, leads to contradiction, or defeats the plain purpose of the law. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). Central tries to explain that its interpretation of § 26-52-409 would not necessarily allow Central to avoid its liability for accrued sales taxes by not reselling the planes it purchased, and does so by suggesting Central would be the consumer and required to remit the tax payment within a reasonable time after the one-year holding period. Of course, no such language suggesting this procedure can be found either in § 26-52-409 or CR14(F)(1), and we are obliged to give a statute effect just as it reads, if no ambiguity exists. See Pledger v. Ethyl Corp., 299 Ark. 100, 771 S.W.2d 24 (1989).
We conclude that the reasonable construction of the “at time of subsequent sale” language in provision (c), relied on by Central, is that it refers only to those aircraft sold “during the one-year holding period.” In other words, when a sale occurs during the one-year period, the purchaser must then remit payment. Otherwise, after the one-year period ends, the taxpayer must remit payment on or before the 20th day of the following month.
For the foregoing reasons, we reverse.
Short-term rental taxes were also assessed on Central’s rental of the aircraft, but these taxes are not at issue in this appeal. | [
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ROBERT L. Brown, Justice.
The appellant, Kacy L. Higgins, was convicted of the crime of theft of property, a Class B felony, in that he exercised unauthorized control over timber owned by other persons and valued in excess of $2,500. The charge arose after Higgins, pursuant to a contract with Calvin Sprinkle, accepted $8,750 from Sprinkle for the removal of timber located on and adjacent to property known as “5803 West Barraque Street” in Pine Bluff. Higgins’s defense was that he was entided to sell the timber because he and his fiance, Barbara Shepherd, had entered into a contract to purchase the house and land located at that address, and that he was the equitable owner of the property. Higgins ultimately received a sentence of five years’ probation and a $3,000 suspended fine contingent upon his compliance with the conditions of probation. We affirm the judgment.
On November 12, 1994, Higgins and Shepherd entered into an offer and acceptance for the purchase of land located at 5803 West Barraque Street in Pine Bluff, with Rick Pierce and Betty Schrantz signing as the designated sellers. The agreement called for a purchase price of $22,000 and was contingent upon three occur rences: (1) the buyers’ obtaining suitable financing; (2) the land having an appraised value equal to or greater than $22,000; and (3) a survey reflecting that the land was three acres or more in size. The offer and acceptance called for possession to be transferred upon closing but allowed the buyers access to the property to make repairs to the house in advance of closing to facilitate financing. The house was in a state of disrepair and had been unoccupied for a period of time.
It developed at trial that the property located at 5803 West Barraque Street contained a parcel of land with 2.76 acres. Immediately adjacent to and west of that property was a strip of land containing 1.1 acres held in the name of a partnership known as “SS&P Partnership.” Rick Pierce testified that the partnership was composed of himself, his wife, and her two brothers. A central issue at trial was whether the 1.1 acres of land was included within the agreement to purchase and convey 5803 West Barraque Street. The information charging Higgins with theft stated only that Higgins exercised unauthorized control over timber owned by Rick Pierce. It did not differentiate between timber located on the 2.76 acre tract and timber located on the 1.1 acre tract.
Carroll Austin, the real estate agent who negotiated the sale, testified that he knew the offer and acceptance was based on 3 acres and later assumed that the 1.1 acre tract was included in the sale of the Barraque Street property. But he added that Rick Pierce never represented to him that this was the case. He testified that he told Higgins in person on the morning of February 3, 1995, that the 1.1 acre tract was not part of the 5803 West Barraque Street land sale. Calvin Sprinkle also testified for the prosecution. He explained that he was in the timber business and that he was contacted by Higgins on the night of February 3, 1995, about purchasing some timber. He struck an agreement with Higgins and testified that he cut approximately one acre of timber located on and around Higgins’s yard on February 6, 1995. He further related to the jury that on the written contract, Higgins marked out the February 6, 1995 date and back-dated the contract to January 20, 1995. He stated that he could not remember Higgins’s explanation for doing this. Sprinkle testified that later that day, Higgins requested immediate payment because he needed to have an operation on his head. Higgins was paid $8,750 for the timber by Sprinkle’s company.
Rick Pierce testified that timber had been taken from both the 2.76 acre tract and the 1.1 acre tract. He added that he gave no one the authority to cut the timber. He also testified as to the amount of acreage involved in the sale of 5803 West Barraque Street. He explained that his instructions to Carroll Austin were to sell the house and the land associated with it. He stated that he never intended to sell the 1.1 acre tract, and he confirmed that the two tracts, in fact, had separate owners.
Barbara Shepherd testified for the defense. She stated that when she and Higgins entered into the contract to purchase 5803 West Barraque Street, they were not told that the 1.1 acre tract was excluded. She testified at length as to the expenditures of time and money made by herself and Higgins in renovating the dilapidated property on the 2.76 acre parcel. She also testified about the events leading up to the removal of timber. She stated that on February 3, 1995, Higgins called her at work to tell her that he had learned that the 1.1 acre tract was not included within the sale of the property. She testified that as of that date, a survey had recently been done, reflecting the land to be 3.86 acres in size, thus including both tracts. She stated that it was her belief that a second survey, reflecting only the 2.76 acre tract, was performed after the timber was cut.
Higgins testified in his own defense that he had a contract to purchase both tracts of land. He relied in part on the survey done for 3.86 acres of land and a newspaper advertisement that reflected the 5803 West Barraque Street property was “over 3 acres,” to reach this conclusion. He further related to the jury a conversation he had with Carroll Austin on February 3, 1995, which differed dramatically from Austin’s rendition of the same event. He stated that Austin came out to the property and was “crying and pacing the floor” and told him he had made a mistake. But according to Higgins, Austin never told him that the 1.1 acre tract was excluded.
As to back-dating the contract between Sprinkle and himself, Higgins explained that he did so because a number of people had come by the property asking to purchase the timber and that he back-dated the contract in order to avoid a conflict and to make it look as though the agreement had been previously negotiated. His reasons for cutting the timber, he said, were for security purposes. He explained that because the property was close to a prison, he feared that escaped inmates would hide in the woods by the home. He explained that he wanted immediate payment from Sprinkle because he needed the money for surgery on his eye and for the removal of air pockets from his mouth.
I. Equitable Conversion
Higgins first challenges his conviction under the doctrine of equitable conversion. At the close of the State’s case, Higgins moved for a directed verdict on grounds that he was the equitable owner of the property and that, as a matter of law, there was no showing of the requisite intent to commit the crime because of his good faith belief in his ownership of the timber in question. The motion, which was writ' , and submitted to the court, was denied. Higgins’s abstract reflects that he renewed the motion at the close of all the evidence. The State argues that Higgins never obtained a timely ruling from the trial court on his renewal motion, but the State is wrong in this respect. The abstract reflects a ruling, and the record evidences the fact that the trial court denied the renewed motion in chambers at the beginning of the conference on instructions.
The law with respect to the denial of a directed-verdict motion was restated recendy in Peeler v. State, 326 Ark. 423, 427, 932 S.W.2d 312, 314 (1996):
A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994). The test is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747[] (1993). We review the evidence in the light most favorable to the appellee. Id.
A person commits theft of property if he “[k]nowingly 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 thereof.” Ark. Code Ann. § 5-36-103(a)(1) (Supp. 1995). “Property of another person,” as defined by the Arkansas Code, does not include “property in the possession of the actor in which another has only a security interest, even though legal title is in the secured party pursuant to a conditional sales contract or other security agreement.” Ark. Code Ann. § 5-36-101(7) (Repl. 1993). Higgins urged at trial, as he does now on appeal, that the State failed to prove that the timber was the “property of another person” because of the doctrine of equitable conversion.
Higgins’s argument is not persuasive. The offer and acceptance for the sale of the Barraque Street property is unclear on precisely what acreage was included. Both the State and Higgins presented proof on this point. The evidence by the State was that Higgins knew he had no ownership interest in the 1.1 acre tract where much, if not most, of the timber was cut. Carroll Austin testified that he informed Higgins on the morning of February 3, 1995, that the 1.1 acres of land was not included in the offer and acceptance. This testimony was also substantiated by Barbara Shepherd, who testified that Higgins called her at work that day to tell her that he had been told the 1.1 acres was not included. Calvin Sprinkle then revealed that he received a phone call the night of February 3, 1995, regarding the purchase of timber. He also testified that Higgins back-dated their agreement to reflect a date of January 20, 1995, a date prior to his knowledge of the status of the 1.1 acre tract. Viewing this evidence in the light most favorable to the State, as we must, we conclude that there was substantial evidence that Higgins was not operating in good faith and knew he did not own the 1.1 acres prior to his selling the timber. This being the case, we will not consider the doctrine of equitable conversion with respect to this tract.
As already stated, the record is not clear about where the timber was cut. Because ownership of the 1.1 acres was a paramount issue at trial, it is logical to assume most of the timber was cut from that acreage. Indeed, Higgins’s counsel admitted as much at oral argument. The purchase price for the timber was $8,750. Thus, it is reasonable to conclude that theft of property in excess of $2,500 would have occurred in connection with timber taken from the 1.1 acre tract.
But even assuming that the theft occurred solely on the 2.76 acre tract, the doctrine of equitable conversion has no application in the criminal context. We agree with the conclusion reached by the Supreme Court of Colorado, when the doctrine was raised as a criminal defense:
Equitable conversion, however, is a civil property law doctrine often invoked to ascertain the rights and duties of contracting parties and those claiming under them in relation to real estate as the result of a specifically enforceable contract between them. (Citing authority.) We know of no justification to extend the doctrine to this case, which involves a criminal charge of fraudulently selling land to a third party ....
People v. Alexander, 663 P.2d 1024, 1030-31 (Colo. 1983). The trial court did not err in denying the motion for directed verdict.
II. Sentencing
When the jury first returned from its sentencing-phase deliberations, it fixed a sentence of zero imprisonment and a zero fine. One year of probation was suggested. Because the range of sentencing for theft of property over $2,500 is a fine not exceeding $15,000 or imprisonment from five to twenty years [Ark. Code Ann. §§ 5-4-201 (a)(1) and 5-4-401 (a) (3) (Repl. 1993)], or both, the trial court concluded that this was not a legal sentence and sent the jury back to deliberate once more. See AMCI 2d 9103. The jury returned with a sentence of a $3,000 fine and no imprisonment, with a suggestion of five years’ probation. The trial court’s order of probation provided for the fine and probationary sentence and that the fine would be suspended conditioned on satisfactory completion of probation.
Higgins’s sole contention under this point is that the trial court should have allowed the first sentence to stand. However, Higgins has made it clear that he does not want the matter remanded for resentencing. Under our bifurcated trial procedure, the jury fixes punishment following the penalty phase of the trial. Ark. Code Ann. § 5-4-103 (Repl. 1993). It is farther clear that the jury may recommend an alternative sentence such as suspension or probation. Ark. Code Ann. § 16-97-101(4) (Supp. 1995). See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); AMCI 2d 9111. The actual assessment of probation, however, is a matter that lies within the discretion of the trial court. Ark. Code Ann. § 5-4-301 (Repl. 1993); Hill v. State, supra.
The first question before us is whether an imprisonment of zero years falls within the statutory range of from five to twenty years. Ark. Code Ann. § 5-4-401 (a)(3) (Repl. 1993). The answer is that it does not, as zero imprisonment is no imprisonment at all. The next question is whether a fine of zero dollars is a fine not exceeding $15,000. Ark. Code Ann. § 5-4-201 (a)(1) (Repl. 1993). Common sense tells us that something with no quantity or magnitude is, in fact, nothing. There was no fine in this case. The jury could have given a term of imprisonment or a fine or both, but instead, it seized none of these options. The sentence was clearly improper, and the trial court did not err in sending the jury back to reconsider the matter.
The cases cited by Higgins for the proposition that it is error to require imprisonment actually stand for the principle that it would be error to require both a term of imprisonment and a fine. See Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Brown v. State, 261 Ark. 683, 250 S.W.2d 776 (1977). Those cases are simply not relevant to the facts of this case.
Again, there was no error committed by the trial court with respect to sentencing.
III. Urine Testing
The order of probation was entered nine days after trial and included as one condition of probation: “Defendant shall not abuse alcohol nor use illegal drugs while on probation and shall submit to periodic drug screen testing as directed by probation officer.” As noted by Higgins, this was the first mention of drug-screen testing in the matter. He now argues that the urine testing was imposed on him without justification and is violative of the Fourth Amendment, though this argument was not made to the trial court.
There are only four exceptions to this court’s rule that errors may not be considered for the first time on appeal: 1) when an error is made by the trial court without knowledge of the defense counsel and without opportunity to object; 2) when a trial court should intervene on its own motion to correct a serious error by admonition or mistrial; 3) when evidentiary errors affect a defendant’s substantial rights although they were not brought to the court’s attention; and 4) when prejudice is conclusively shown by the record in death penalty cases and would unquestionably require relief under Ark. R. Crim. P. 37. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Higgins contends that he falls within the first exception because he had no notice of this condition and, thus, no opportunity to object to the urine testing in the probation order.
The final order in this case, which was the order of probation and which included the urine testing, was entered on September 28, 1995. The order shows a copy going to “Attorney for Defendant.” Higgins apparently met with the Adult Probation Office on September 20, 1995, which was the day after his sentencing. Notice of appeal was filed by Higgins on October 17, 1995. We find it to be somewhat incredible that Higgins did not know about a condition of his probation prior to his appeal. Moreover, Higgins and his counsel are charged with knowledge of when the final order was entered in this case, because that commences the time for appeal. See, e.g., Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994). Indeed, Higgins appealed from that order of probation 19 days after the order was entered. It necessarily follows that they are likewise charged with knowledge of what is in that final order.
Under our criminal rules, Higgins had 30 days from the date of that order to file some motion for relief with the trial court. Ark. R. Crim. P. 33.3, formerly Ark. R. Crim. P. 36.22; Ark. R. App. P. 2(a)(1). We have held in other contexts that a matter pertaining to a final order should be raised to the trial court. See Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995) (appellant voiced no objection to 75-year sentence at trial); Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995) (appellant did not raise issue of whether battery claim was included in dismissal order to trial court and, thus, waived it). The same rationale should certainly apply to a condition of probation. No motion challenging the urine testing as a condition of probation was filed. Hence, we will not consider the issue for the first time on appeal.
Affirmed. | [
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RHONDA K. WOOD, Associate Justice
| Michael Mercouri appeals the judgment and commitment order finding him guilty of aggravated robbery. He argues that insufficient evidence supports the verdict and that the jury’s verdicts were improperly inconsistent. We accepted certification from the Court of Appeals. We find no error and affirm.
I. Relevant Facts
In April 2013, Kelvin Perry, the general manager of Aaron’s in North Little Rock, was leaving work for lunch and to make a deposit at the bank. As he was walking through the Aaron’s parking lot, he heard someone yell his name. Perry saw Mer-couri, a former temporary employee, sitting in his vehicle. Perry recognized Mer-couri and walked over to him. Mercouri inquired why Perry had not asked him to’ work lately. Perry responded that he did not need any additional help. Mercouri then reached down, pulled out a gun, and placed it on his lap. Perry “didn’t think anything of it” until Mercouri grabbed him by the sleeve of his jacket, tried to pull him through the car window, and said “[G]ive me your money.” Mercouri grew angry and pointed the gun toward Perry when Perry responded | ¿that he did riot have any money. Mercouri ordered Perry to get in the back seat of the vehicle. Perry opened the back door of the vehicle but, instead of getting in, he suddenly ran across the street. Mercouri immediately left the scene, and Perry called the police.
Officer Randy Flippin with the North Little Rock Police Department responded. Perry identified Mercouri as the assailant and gave a description of Mercouri’s' vehicle. Within an hour. Officer Flippin located Mercouri at his address in Jacksonville. The firearm was never recovered from Mércouri.
The State charged Mercouri with aggravated robbery, felon in possession of a firearm, and employing a firearm as a means of committing a felony. The jury convicted him of aggravated robbery but found that he was not armed with a deadly weapon for' purposes of the firearm enhancement. He was sentenced to ten years in the Arkansas Department of Correction. Following sentencing, the felon-in-possession-of-a-firearm charge, which was scheduled for a separate trial, was nolle prossed.
II. Motion for Directed Verdict
For his first point on appeal. Mercouri argues that the circuit court erroneously denied his motion for directed verdict. A directed verdict is a challenge to the sufficiency of the evidence. Fink v. State, 2015 Ark. 331, 469 S.W.3d 785. A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient force and character that compels with reasonable certainty a conclusion without resorting to speculation and conjecture. Id. Credibility of witnesses is an issue for the jury, not this court. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686. The trier of fact is free to believe all or part of any 13witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only evidence that supports the verdict. Id.
Mercouri changes his motion-for-directed-verdict argument on appeal. At trial, he argued to the circuit court that the evidence was insufficient because there was no evidence, other than Perry's testimony, that he was armed with a deadly weapon. He does not raise this argument on appeal. Rather, on appeal, he now argues that his directed-verdict motion was improperly denied because the jury’s verdicts were inconsistent. However, this directed-verdict argument is not preserved on appeal because Mercouri did not make this specific argument to the trial court. We will not address arguments that are raised for the first time on appeal. State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007); Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Because this was not the basis of his directed verdict motion to the trial court, it is not preserved for appellate review. Moreover, we cannot address the issues argued below relating to whether the State presented sufficient evidence to carry the aggravated-robbery charge because Mercouri abandoned that argument when he chose not to make it on appeal. Grisby, 370 Ark. at 68, 257 S.W.3d at 107. Therefore, we affirm the circuit court’s denial of Mercouri’s motion for a directed verdict.
III. Motion to Set Aside Guilty Verdict
After the jury found Mercouri guilty, he moved to set aside the guilty verdict on the aggravated-robbery charge because it was inconsistent with the acquittal on the firearm enhancement. He now appeals the denial of that motion. Mer-couri alleges that the verdicts were inconsistent because the jury found him not guilty of employing a firearm for purposes Uof the firearm enhancement but guilty of aggravated robbery, which requires a finding that he was armed with a deadly weapon.
Although Mercouri is correct that the two verdicts appear inconsistent, it is well settled that a defendant may not attack his conviction on the basis of its repugnancy. Jordan v. State, 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996). “A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because, of compassion or compromise, and not solely because there was insufficient evidence of guilt.” Id. The jury is free to exercise lenity if it believes that a conviction on one count would provide sufficient punishment. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993) (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)). Accordingly, Mercouri’s argument is without merit.
Affirmed.
. On the aggravated-robbery charge, the jury was instructed:
Michael Mercouri is charged with the offense of Aggravated Robbery. To sustain this charge, the State must prove the following:
First: That with the purpose of committing a theft, Michael Mercouri employed or threatened to employ physical force upon another; and
Second: That Michael Mercouri was armed with a deadly weapon.
"Deadly weapon" means a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious physical injury.
“Physical force” means any bodily impact, restraint or confinement. "Purpose.” A person acts with purpose with respect to his conduct when it is his conscious object to engage in the conduct.
See.AMI Crim. 2d 1201. | [
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KAREN R. BAKER, Associate Justice
| í This appeal stems from the ad valorem taxation of certain parcels of property owned by the appellee, Board of Trustees of the University of Arkansas (“the University”). In 2011, 2012, and 2013, the University submitted applications to the appellant, Washington County Tax Assessor, seeking immunity from taxation, or alternatively, exemption from taxation for tax years 2010, 2011, and 2012. Thereafter, litigation ensued, and the cases were ^consolidated on the joint motion of the parties. The procedural history of this matter is as follows. The Washington County Tax Assessor denied the University’s applications. The University appealed the denial to the Washington County Board of Equalization, which affirmed the assessor’s decision. Under protest, the University paid the assessed taxes and appealed the Board of Equalization’s decision to Washington County Court. The Washington County Court affirmed the Board of Equalization’s decision. On December 19, 2012, the University appealed to the circuit court. On January 18, 2013, the University filed its complaint in the circuit court and filed its amended complaint on May 13, 2014. The Fayetteville School District intervened in the case, asserting that the greatest portion of the taxes assessed and collected by Washington County are distributed to the school district, giving the school district an interest related to the property and taxes at issue. Washington County and the University did not object to the school district’s intervention. The appellants will hereinafter be collectively referred to as “Fayetteville.”
Once litigation proceeded in the circuit court, competing summary judgment motions were filed by both parties. On October 28, 2014, the circuit court held a hearing. On December 31, 2014, the circuit court announced its ruling from the bench, granting the University’s motion for summary judgment and denying Fayetteville’s and entered an order to that, effect that same day. On January 12, 2015, Fayette-ville filed a motion pursuant to Arkansas Rule of Civil Procedure 52(b) for amended findings of facts and for additional findings, including a Rule 54(b) certificate. On January 29, 2015, Fayetteville filed its notice of appeal. On February 2, 2015, the circuit court entered a final order. On February 3, 2015, ^Fayetteville filed its second notice of appeal.
The parties timely filed their respective briefs, and with permission of the court, the Attorney General of the State of Arkansas filed an amicus curiae brief in support of the University. From the circuit court’s order granting the University summary judgment, Fayetteville timely appeals and presents one issue: whether the circuit court erred in holding that the University is entitled to sovereign immunity from ad valorem taxation.
I. Standard of Review
Moving to our standard of review, “summary judgment may" be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law.” Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. “Ordinarily, upon reviewing a circuit court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist.” May v. Akers-Lang, 2012 Ark. 7, 386 S.W.3d 378. 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. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. “When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. As to issues of law presented, our review is de novo.” State v. Cassell, 2013 Ark. 221, 4-5, 427 S.W.3d 663, 666 (citations omitted). “De novo review means that the entire case is open for review.” Certain Underwriters at Lloyd’s, London v. Bass, 2015 Ark. 178, at 9, 461 S.W.3d 317, 323 (citations omitted).
|4A1so on review, “[t]his court reviews a circuit court’s interpretation of a constitutional provision de novo." We are not bound by a circuit court’s decision, but in the absence of a showing that the [circuit] court erred in its interpretation of the law, that interpretation will be accepted on appeal. Language of á constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain méaning of a constitutional provision. Furthermore, when engaging in constitutional construction and interpretation,' this court looks to the history of the constitutional provision. The Arkansas Constitution must be considered as whole, and every provision must be read in light of other provisions relating to the same subject matter.” Gatzke v. Weiss, 375 Ark. 207, 211, 289 S.W.3d 455, 458 (2008) (citations omitted).
With these standards in mind, we turn now to the issue on appeal.
II. Sovereign Immunity from Ad Valorem Taxation
At issue is the circuit court’s February 2, 2015, order which granted the University’s motion for summary judgment and held that the University was immune from ad valorem taxation based on sovereign immunity:
For the reasons stated by the Honorable William Storey in a proceeding held on December 31, 2014, the. Court finds, as a matter of law, that the University is an instrumentality of the State of Arkansas and that it possesses sovereign immunity from ad valorem taxation. A copy of the written Order and the transcript of the proceeding held on December 31, 2014 are respectively attached hereto as Exhibits 1 and 2 and incorporated herein by reference.[ ] Judge Storey specifically held that the Board of | ¡/Trustees of the University of Arkansas is an instrumentality of the State of Arkansas, and cited Arkansas v. Texas, 346 U.S. 368 [74 S.Ct. 109, 98 L.Ed. 80] (1953), in support of -his determination. Judge Storey then held that the University, as an instrumentality, of the State of Arkansas, possesses sovereign immunity from ad valorem taxation under the Arkansas Constitution. Judge Storey cited Arkansas State Highway Commission v. Sub-District No. 3 Grassy Lake, 237 Ark. 614 [376 S.W.2d 259] (1964), and generally, referenced other cases cited by the University’s brief in reaching the Court’s ruling.
As determined and announced by Judge Storey in. open court on December 31, 2014, and as entered into .the record in a written Order on the same day, this Court finds and holds, as a matter of law, that the Motion for Partial Summary Judgment filed by the Intervenor was denied. In open court and in the Order entered on December 31, 2Ó14, this Court finds and holds, as a matter of law, that, the Motion for Partial Summary Judgment, as adopted by Washington County, the Washington County Tax Assessor, and the Washington County Tax Collector in their Statement of Concurrence and Adoption by Reference, was denied as well.' This Court incorporates by reference and adopts Judge Storey’s bench'ruling and written Order entered for the record on December'31, 2014, as its own in this Judgment. For the avoidance of all doubt, the Court FINDS and ORDERS:
A. Intervenor’s Motion for Partial Summary Judgment is .hereby DENIED;
-B. Washington County’s Motion for Partial Summary Judgment is- hereby DENIED; and
' C. The University’s Motion for Summary Judgment is hereby GRANTED. These rulings on the parties’ respective motions- are intended to be and are declared to be consistent with Judge Storey’s original ruling and Order dated December |n31, 2014.
Accordingly, the narrow issue in this case is whether the University is immune from ad valorem taxation as to the specific parcels involved in this case.
A. Sovereignty
We turn to the genesis of the sovereign state. Sovereignty’ is the “the supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of'regulating its internal affairs without foreign interference. Sovereignty is the power of a state to do everything necessary to govern itself, such’ as making, executing, and applying laws; [and] imposing and collecting taxes.... The sovereignty of a state is determined with reference to the U.S. Constitution, which is the supreme law of the land.’’ West Ency clopedia on American Law, 2d ed., 258-89, Vol. 9 (2005).
B. Authority to Tax
With regard to the power to tax, article 2, section 28 of the Arkansas Constitution, entitled, “Taxation and eminent domain; delegation,” provides that
[t]he State’s ancient right of ... taxation, is herein fully and expressly conceded; and the General Assembly may delegate the taxing power, with the necessary restriction, to the State’s subordinate political and municipal' corporations, to the extént of providing for their existence,' maintenance and well being, but no further.
Ark. Const. art. 2, § 28.
With regard to taxation of property, article 16, section 5, provides in pertinent part:
(a) All real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, irtaking the same equal and uniform throughout the State.
Jx •
.(b) The following property shall be exempt from taxation: public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity,
C. Analysis — Arkansas Constitution article 16, section 5
Having reviewed the principles of sovereignty and taxation, we move to our review of the Arkansas Constitution to address the issue before us. Fayetteville contends that the circuit court erred in its interpretation of article 16, section 5 and asserts that the University is “subject to” ad valo-rem taxation. Fayetteville further, asserts that there is not a reported decision by this court involving ad valorem taxation which holds that property owned by the state of Arkansas is immune from ad valo-rem taxation. Fayetteville also contends that the Arkansas Constitution does 'not grant immunity to the state from ad valo-rem taxation or its instrumentalities. Rather, Fayetteville contends that our constitution employs a use analysis, stating in section 5(a) that all property subject to taxation shall be taxed and that public property shall be taxed and exempted only under subsection (b) if it is used exclusively for public purposes. Relying on Arkansas Teacher Retirement System v. Short, 2011 Ark. 263, at 10, 381 S.W.3d 834, 840, Fayetteville contends that:
[t]he decision in the Short case leaves no doubt that property owned by agencies and instrumentalities of the state — in-eluding the University of Arkansas — is not immune from taxation simply because those agencies and instrumentalities hold title to the property in their names and serve the beneficent public purposes. Short makes it. abundantly clear that such entities must show that ,the particular property at issue is actually and exclusively used for public purpose. ... [T]he University of Arkansas must ... prove that the parcels of property at issue here are actually and exclusively used for a public purpose. The University will have the opportunity to offer such proof in connection with its exemption claim. It cannot short-circuit that process by claiming | Rsovereign immunity.
The University responds that it' is not “subject.to” taxation, and therefore, the analysis ends because it is simply immune from taxation, and an analysis regarding exemption and subsection (b) is not necessary. The University further responds that if all property were subject to taxation, the constitution would state “all property is subject to,” not “subject to” which contemplates exclusions either by immunity or by exemption. The University also responds that, as an instrumentality of the sovereign state, its property enjoys immunity from taxation as a sovereign entity and that the exemption analysis is not necessary and it urges us to affirm the circuit court.
Fayetteville replies that, even if the University is an instrumentality of the State, an analysis of taxation and exemption is required based on our constitution. In sum, both parties rely on the absence of language in article 16, section 5 as support for their respective arguments.
We turn now to the constitutional provisions at issue. In City of Fayetteville v. Washington County, 369 Ark. 456, 468, 255 S.W.3d 844, 853-54 (2007), we interpreted our constitution and explained our standard of review regarding constitutional challenges:
This court has been absolutely clear about our role in interpreting the Arkansas Constitution:
“The people of the State, in the rightful exercise of their sovereign powers, ordained and established the constitution; and the only duty devolved upon this court is to expound and interpret it.” Lake View [School Dist. No. 25 of Phillips County v. Huckabee], 351 Ark. [31] at 54, 91 S.W.3d [472] at 484 [(2002)] (quoting State v. Floyd, 9 Ark. 302, 315 (1849)). We have specifically defined the standards we use when interpreting the Arkansas Constitution to be as follows: When interpreting the constitution on appeal, our task is to read the laws as they are written, and interpret them in accordance with established | principles of constitutional construction. It is this court’s responsibility to decide what a constitutional provision means, and we will review a lower court’s construction de novo. We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003) (internal citations omitted).
Applying this standard to the constitutional provisions at issue, the plain language of article 23, section 2 provides that the state has the right to tax and the General Assembly may delegate the taxing power. Further, the plain language of article 16, section 5, subsection (a) provides that real and tangible personal property are subject to taxation. However, as noted by the parties, in our constitution there is an absence of language articulating that property owned by the state is “subject to” taxation.
Based on the plain language of the constitution, the constitution does not state that sovereign property is subject to ad valorem taxation. Further, in reviewing our long-standing | inprecedent, in School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896), we interpreted article 16, section 5 and addressed the issue of when public property is exempt from taxation. In our analysis we also addressed immunity from taxation and explained
The constitution of the state declares that laws exempting property from taxation, except as therein provided, shall be void. Const. art. 16, § 6; Railway Co. v. Worthen, 46 Ark. 312 [ (1885) ]. It further provides that the following property shall be exempt from taxation: “Public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.” Const. 1874, art. 16, § 5. This provision defining what public property is exempt from taxation does not refer to property owned by the state, for the presumption is that the state does not intend to tax its own property, but it refers to property oimed by the public corporations, or organizations of the state, such as counties, cities, towns, and school districts. It will be noticed that all public property is not exempt from taxation, but only that public property which is used exclusively for public purposes. It is conceded that this land is public property, but the question of its exemption from taxation is not determined alone by its character as public property, but; also by the nature of its use. This land is not used for school grounds, nor is there any intention to erect upon it buildings of any kind for the use of schools; but it was purchased, and is now held, only for the purpose of sale or for rent.
Id. at 484, 37 S.W. at 717-18 (emphasis added).
Additionally, in Blackwood v. Sibeck, 180 Ark. 815, 23 S.W.2d 259, 260 (1930), we also recognized sovereign immunity from ad valorem taxation. The issue on appeal in Blackwood addressed the liability of the counties of the state for the payment of the license fee for the issuance of the tag or plate that is placed upon motor vehicles owned by the counties and used exclusively for public purposes. In Blackwood, in addressing tax statutes regarding the county, we explained that
The case of Board of Improvement v. School District, ... [56 Ark. 354, 19 S.W. 969 (1892)], did not hold that public property might not be taxed, but held only that there was a presumption against any such intention on the part of the Legislature, and that such a tax could be levied and collected only when the authority so to do was |nexpressly conferred or arose by necessary implication from the legislation imposing the tax. As the reason for this rule, the court quoted from Cooley on Taxation (2d Ed.) p. 172, as follows: “Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the-intent of the legisla ture in adopting them. Such is the case with property belonging to the state and its- municipalities, and which is held by them for governmental purposes. All such property is taxable if the state shall see fit to tax it; but to levy a tax upon it would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself,.and no one would be benefitted but the officers ' employed, ’ whose compensation would go to increase the useless levy. It cannot be supposed that the legislature would ever purposely lay such a burden upon public property and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the state and by all its municipalities for governmental purposes was intended to be excluded, and the law will be administered as excluding it in fact.”
Blackwood, 180 Ark. at 816-17, 23 S.W.2d at 260 (1930).
More recently, in Arkansas State Highway Comm’n v. Sub-Dist. No. 3 of Grassy Lake, in a condemnation action, a drainage district asserted that.the exercise of eminent- domain on its .lands, by the State Highway Commission would reduce ,its property tax base and create á deficiency that would necessarily .have to be made up by other landowners in the district.
This drainage, district earnestly argues that, as a matter of equity, if the potential tax. liability of the condemned land should be extinguished without compensation to the district the result will be to increase the payments that will eventually have to be made by the other landowners in the district. No doubt this is true, but the situation is' simply an unavoidable consequence of the State’s sovereign immunity from taxation. In fact, this situation is commonplace. Almost every tract of land taken by eminent domain is subject to future taxation for public improvements already made, such as a levee, a drainage system, a courthouse, a municipal auditorium, a schoolhouse, and so on. There can, as a practical matter, obviously be no requirement that the sovereign satisfy all these nebulous obligations as a condition to the acquisition of the land. (See Public Water Supply Dist. No. 3 of Jackson County, Mo. v. United States, 135 F.Supp. 887, 133 Ct.Cl. 348.) That some shift in the burden of taxation may take place is merely one of the risks that every taxpayer incurs.
Id., 237 Ark. 614, 617-18, 376 S.W.2d 259, 261 (1964) (emphasis added).
| ^Finally, although Fayetteville asserts that our decision in Short, 2011 Ark. 263, at 10, 381 S.W.3d at 840, supports its position, we disagree. In that case, we addressed the issue of whether certain property was used exclusively for public use with regard to exemption, not immunity. Specifically, the Arkansas Teacher Retirement System contended that the circuit court erred'in concluding'that the property was not exempt from the payment' of ad valorem taxes pursuant to article 16, section 5(b) of the Arkansas Constitution. Id. at 1, 381 S.W.3d at 835. Accordingly, the issue on appeal was not immunity from ’taxation and therefore, this case is not relevant to our discussion.
Here, our constitution delegates the power to enact laws regarding taxation. The record demonstrates that our General Assembly has not enacted a law subjecting property owned by the state to ad valorem taxation, nor has the General Assembly delegated that power to subordinate political and municipal corporations. Therefore, in reviewing the specific facts and circumstances in this particular case, based on our constitution,and,long-standing- precedent, we hold- that the property, owned by the state is immune from ad valorem taxation.
As the United States Supreme Court explained in Van Brocklin v. Anderson, 117 U.S. 151, 174-75, 6 S.Ct. 670, 29 L.Ed. 845(1886):
In short, under a republican form of government, the whole property of the state is owned and held by the state for public- uses, and is not taxable, unless the state which owns and holds it for those uses clearly enacts that it shall shai’e the burden of taxation with other property within its jurisdiction. • Whether the property of one of the states.of the Union is taxable under the laws of that state depends upon, the intention of the state as manifested by those laws.
Further, “All- [state owned] property is taxable, if the State shall- see fit to tax it; but to | islevy- a tax upon it would- render necessary new taxes to meet' the demand of this tax, and thus the public would be taxing itself in- order to raise money to pay over to itself, and no one would be benefit-fed. ⅛.. .It cannot -be- supposed that the legislature would ever purposely-lay such a burden upon public property, and it is. therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the state .will be administered as excluding it in fact, unless it is unmistakably included in the taxable property by the constitution or statute.” Thomas M. Cooley, The Law of Taxation, 1313 (4th ed.) Accordingly,- to tax property -to simply take from one pocket and return it to the same pocket is non-sensical.
III. . The University of Arkansas as an Instrumentality of the State of Arkansas
Having established that property owned by the state in this case is immune from ad valorem taxation under these facts, we must also, resolve- the specific issue before us, whether the University is the state in this situation and entitled to immunity from taxation. We answer that question in the affirmative. In Arkansas v. Texas, 346 U.S. 368, 370, 74 S.Ct. 109, 98 L.Ed. 80 (1953), in addressing a contract issue, the United States Supreme Court held as follows:
[A]s we read Arkansas law the University of Arkansas is an official state instrumentality; and we conclude that for purposes of our original jurisdiction any injury under the contract to the University is an injury to Arkansas.
The Supreme Court further held:
The University, which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to be sure, is ‘a body politic and corporate with power to issue bonds which do not pledge the credit of the State.’ But the Board must report all of 'its expenditures to the legislature, and the- State owns all the property used by the University. The Board of Trustees is denominated ‘a public agency' of the State, the University iq14 referred to as ‘an instrument of the state in the performance of a governmental work’, and a suit against the University is a suit against the State.
Id. at 371, 74 S.Ct. 109.
Additionally, our holdings have been consistent with those of the United States Supreme Court’s that the University is an instrumentality of the State arid acting as the State. In State v. University of Arkansas Board of Trustees, 241 Ark. 399, 401, 407 S.W.2d 916, 916-17 (1966), we explained:
In the light of the holding of the United States Supreme Court in State of Arkansas v. State of Texas, we hold that this suit against the University of Arkansas Board of Trustees is a suit against the State.
Accordingly, consistent with our precedent, we hold that the University is an instrumentality of the State of Arkansas and for the reasons discussed above, the property at issue here is immune from ad valorem taxation. Therefore, we affirm the circuit court.
Affirmed.
Special Justice Rex M. Terry joins in this opinion.
Special Justice Brian A. Vandiver concurs.
Brill, C.J., and Goodson, J., not participating.
. The appellants are Washington County, a governmental entity located in northwest Arkansas; Jeff Williams, the publicly elected Assessor of Washington County; David Ruff, the publicly elected Collector of Washington County; and the Fayetteville School District No. 1, a governmental entity operating in Washington County, Arkansas.
. The University originally sought immunity from ad valorem taxation as to 46 parcels of real property and 20 parcels of personal property. However, on May 23, 2014, the circuit court granted the University's motion to non-suit. Accordingly, there are a total of eleven parcels at issue in this case; ten parcels of real property and one parcel of personal property.
. Judge Storey's order in its entirety stated as follows:.
Now on this 31st day of December, 2014, comes on for consideration the referenced matter and. from all things and matters before the Court, the Court finds:
1-. That Defendants' motions for summary judgment should be and are hereby denied.
2. That Plaintiffs motion for summary judgement should be ánd is hereby granted,
IT IS SO ORDERED.
. We note that the "subject to” language was first adopted in our 1836 constitution and was a single subsection and did not include subsection (b). Art. 7, Revenue section 1-2 (emphasis in original) stated in pertinent part:
Sec. 1. All revenue shall be raised by taxation to be fixed by law.
Sec. 2. All property subject to taxation, shall be taxed according to its value — that value to ascertained in such manner as the General Assembly shall direct!.] ... Provided, the General Assembly shall have power to tax merchants, hawkers, peddlers, and privileges, in such a manner as may from time to time be prescribed by law: And provided further, that no other or greater amount of revenue shall at any time be levied than required for the necessary expenses of the government, unless by a concurrence of two-thirds of both houses of the General Assembly. | [
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RITA W. GRUBER, Judge
|, Lloyd Draughon Smith and Alicia Dawn Neumann were divorced in July 2008 by decree of the Circuit Court of Miller County. The parties later entered into a compromise settlement agreement, which the court approved in March 2009 as a modification of the original decree. On September 11, 2014, the court conducted a hearing on various motions by the parties. The court entered a final modification order in November 2014, and Ms. Neumann timely filed a motion for reconsideration. In December 2014, the court denied her motion. Ms. Neumann now appeals the final modification order and denial of her motion for reconsideration. Her points on appeal concern (1) the denial of her petition to sell the marital home, (2) the lack of a child-support order, (3) the alleged bias of the court, (4) the judge’s in-chambers conference with the children, (5) the award of true joint custody, and (6) the denial of her motion for reconsideration of custody. We affirm.
The 2008 original decree of divorce granted Mr. Smith sole custody of the parties’ |2twin children (born on December 14, 2001). Ms. Neumann was granted visitation under the circuit court’s, standard order for visitation and was ordered to pay bi-weekly child support of $437. She received as her separate property a residence .in Texarkana, Bowie County, Texas. Each party maintained a one-half ownership interest in the marital residence located in Texarkana, Miller County, Arkansas,' subject to the following:
The residence is set aside to Lloyd Smith for the use and benefit of the minor children until such time as the children reach the age of majority or are otherwise emancipated. At such time, the residence shall be sold and the proceeds of the sale, less the costs of the sale, shall be divided equally between Lloyd Draughon Smith and Alicia Dawn Neumann. If Lloyd Smith ceases to live in the residence with the children, Alicia Dawn Neumann may petition the Court to sell the residence.
The 2009 modification order and settlement agreement made changes to the original awards of custody, visitation, and child support. The parties received joint custody effective February 1, 2009; the amount of bi-weekly child support by Ms. Neu-mann was reduced to $218.50; and the parties were to split the cost of after-school care.' Ms.- Neumann continued to have the children at all times under the circuit court’s standard visitation order as well as at times when Mr. Smith was physically absent from Texarkana. Upon Mr. Smith’s anticipated “physical move” to Florida, Ms. Neumann was to become sole custodian and Mr. Smith was to have standard visitation. Regarding child support,
[a]t the time that Alicia Dawn Neumann shall become sole custodian, child support shall be set and due from Lloyd Draughon Smith in an amount specified by Administrative Order No. 10 in accordance with his earnings at that time.A separate order of support shall be entered as soon as practicable after his physical relocation, but the child support so established shall be due retroactively back to the date of the actual move.
The marital home.was to.be “immediately listed for sale and sold as soon as reasonably [,-¡practicable” upon Mr. Smith’s moving to Florida, with the proceeds less costs of sale to be divided equally as provided in the decree of divorce. A $53,809.35 judgment previously awarded to Mr. Smith in the divorce was reduced to $29,404.67, “due and payable” solely from Ms. Neu-mann’s share of the sales proceeds.
Mr. Smith never moved to Florida because his anticipated job never materialized. However, Ms. Neumann’s physical time with the .children - increased beyond what had been awarded as standard visitation and during the times that Mr. Smith was absent from. Texarkana. Beginning with the 2012-13 school year, the twins used Ms. Neumann’s address in order to attend public schools in Texarkana, Texas. On- September 11, 2014, Ms. Neumann filed an amended motion to modify custody and a petition to sell the marital residence. She asserted that because of changes in circumstances, it was in the children’s best interest that she have the primary care, custody, and control of the children, subject to the reasonable rights of visitation of. Smith, and that he be required to pay child support consistent with Administrative Order No. 10. Alternatively, she requested that the parties have equal custody and time with the children and that no .child support be paid by either party.
In September 2014, the court conducted a hearing on the parties’ motions concerning material changes of circumstances and change of custody, child support, sale of the marital home, and the children’s residence. Ms. Neumann testified that she had been the primary caregiver for at least four years; that Mr. Smith intentionally had not notified her of an appointment date for one of the twins in Memphis, made pursuant to a medical referral to |4which he objected; that the twins had been attending school in Texas; that they had not primarily resided with Mr. Smith for three years and' that he no longer résided at the marital residence with them; and that the twins had indicated their choice that she be the primary custodial parent. Alternatively, she asked that the parties have equal custody and time with the children, that neither party pay child support, arid that the court order a sale of the marital residence. Mr, Smith requested an increase in the amount of child support payable by Ms. Neumann; alternatively, he requested that the parties have equal custody and time with the children and that neither party pay child support. He also requested that the children’s geographic residence be restricted to Miller County, Arkansas, or Bowie County, Texas.
The twins testified at the September 2014 hearing that they wanted to live with their mother, and the judge talked privately with them in chambers afterward. Other witnesses also testified at the hearing: Ms. Neumann’s next-door neighbor; another neighbor, friend, and fellow church member of hers, who taught the children in Wednesday-night Bible study; an after-school childcare supervisor; Ms. Neu-mann; Mr. Smith; and a friend and coworker of Mr. Smith’s.
At the conclusion of the hearing, the court expressed its belief that the parties could work together and its disbelief that the children spent a majority of their time with Ms. Neumann. The court acknowledged the twins’ testimony of their preference to live with Ms. Neumann but stated, “I don’t know if they were given the option of joint custody. The court discussed that with them, and they are willing to work toward that.” The court found that the children needed more stability and that “it would be better for the children that joint | ^custody remain in effect.” The court ordered that this would be “true joint custody ... seven days on and seven days off,” with holidays and summer to be equally split. Finding that Mr. Smith had not abandoned the marital residence, the court ruled,
A close reading of the ease — as long as that residence is being used in any matter for the children, which the court finds that it is — I don’t know that it can be sold. You can do something on that on your own if you want, but I have to stick with the court’s [previous] order. ...
The court delayed ruling on child support until it could review Administrative Order No. 10 and income documents from the parties. It ordered an equal split of expenses for extracurricular-activity .expenses, with the children choosing their activities. , ,
The November 10,- 2014 final modification order embodied the court’s oral rulings. The order also included a finding that' material changes of circumstances had occurred since entry of the 2009 agreed order and that the court’s rulings were in the best interest of the children. Ms. Neumann’s petition to sell the former marital residence was denied; her child-support obligation was ended effective September 11, 2014; neither party was awarded child support; and the court ordered that the children continue their schooling in Texas.
In her motion for reconsideration of the final modification, Ms. Neumann prayed for an emergency hearing “to hear the children’s testimony • of all that has occurred since the final hearing on September 11, 2014,” and for reconsideration of the court’s rulings. .She alleged, among other things, that Mr. Smith had forbidden the children from transporting their clothing between houses and that O.S. had been physically.assaulted by,Mr. Smith’s older son. Attached to the motion for consideration were three exhibits. Exhibits A and B were handwritten statements, by the twins, each expressing a preference that the weekly exchange |Rbe Friday instead of Sunday because it was a better time to get their clothes. O.S. also wrote about needing to work on a science project and fearing that, at the time for getting - clothes, “my dad will pull up in the driveway and that he will do something to hurt my mom.” Exhibit C, another handwritten statement from O.S., added these details:
Friday evening around 5:00 pm me, my mom and [C.S.] went to my dad’s house to go get our laptops and our clothes. .We did not expect for my-dad and my brother to -be- there. I thought they would be hunting. So [C.S.] and I went inside to get our stuff. My dad asked us what were we .doing there and we both answered to get pur laptops and' our clothes. Then he said- why can you not just leave one of the laptops over here and I said no. my science stuff is on there. . . ....
He wrote .about deciding to get his clothes anyway, becoming upset when his father told him to stop, going outside where his mother was waiting, and exchanging more words with his father. , He concluded, “[Sjeven days on and seven days off is not working for me .and I would like to change it.”
Mr. Smith requested that the court deny the motion for reconsideration, which he called a “poorly disguised motion to modify” giving him no opportunity to conduct discovery or otherwise prepare a defense. At the outset of a hearing conducted on December 4, 2014, the court remarked that there perhaps should have been two motions. The court informed the parties that it would consider in the instant hearing only whether anything of an emergency nature had happened since the last hearing to affect the children’s well being. The court told Mr. Smith that if “at some point there is a motion to modify you’re right, you’ll have an opportunity to answer to discovery or whatever Ms. Neumann' can appeal.”
The hearing proceeded with Mr. Smith and O.S. testifying about an incident between O.S.. and Mr. Smith’s twenty-two-year-old son, Taylor, O.S.’s half-brother, who lived in |7Mr. Smith’s home. Mr. Smith testified that O.S. complained to him that Taylor had “picked on him”; that Smith later read in a text from O.S. to his mother that Taylor had slapped him; and that Smith, after talking to Taylor and O.S., had decided that the incident was “rough-housing ... nothing to it.” Mr. Smith testified that he was unaware of a warrant to arrest Taylor for domestic battery — -which Smith said was a “really sorry” bullying tactic — and that he had done nothing to segregate Taylor and O.S. because there ivas no need. Regarding the past incident of the twins coming to his house for their clothes, he agreed that he had refused to let O.S. get his clothes and that the two of them had argued. He testified that the police had come into the house, called by Ms. Neumann. He also testified that' O.S. had been suspended from school on a- Thursday when the children were with him, after the date that Ms. Neumann had filed her motion for reconsideration. Smith testified that, at O.S.’s request, he did not tell Ms. Neu-mann about the suspension — relying instead on O.S. to tell her the following Sunday.
O.S. testified to the truth of his written statement. He testified that he had told his father about Taylor slapping him in the face; his father had said that there was no mark and that O.S. would be okay; O.S. had gone to the police at his mother’s suggestion; a warrant had been issued and Taylor was not supposed to be around him; but they were still around each other. O.S. said that he was sometimes afraid of Taylor. He denied asking his father to not tell his mother about the school suspension.
The court denied Ms. Neumann’s motion for reconsideration but, noting that a different court would handle the no-contact issue upon service of the warrant, issued a Istemporary emergency order. Mr. Smith was ordered to ensure no roughhousing or unwanted physical contact between O.S. and his half-brother during the-pendency of the criminal domestic-battery case.
Ms. Neumann brings her appeal from the modification order and the denial of the motion for reconsideration. She refers in several of her points to the circuit court’s in-chambers conference with the children,.which she presents as Point IV. We begin with that point, and we combine her Points V and VI before addressing her remaining points.
I. Appellant’s Point IV — The Children’s Testimony in Chambers
Ms. Neumann contends that “the trial judge’s request to meet with the twelve-year-old twins in chambers after their clear testimony on the stand” was an abuse of discretion, compounded by the court’s failure to record the proceedings. She asserts that the judge requested the meeting “on his own initiative.” We agree with Mr. Smith that this mischaracterizes the judge’s action. Ms. Neumann filed a September 5, 2014 motion requesting that the judge “confer with the children, in chambers, to determine [their] wishes as to which parent they want to live with primarily.” At the September 11, 2014 hearing, the judge made this reference to a previous conversation with counsel: “Y’all said that after you put on your testimony, y’all may want me to talk to them separately.” Each party answered in the negative when the judge asked— before meeting with the children in chambers — if either objected. .Clearly,- Ms. Neumann requested the in-chambers conference herself and did not object when it was imminent. The conference did not originate with a request from the circuit court.
UMs. Nehmann, asserting that she did not waive recording the in-chambers conference, has recreated the alleged conver sation and has included it in her brief as a statement of evidence. The proper procedure to follow is outlined by our rules:
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appel-lee, who may serve objections or proposed amendments thereto within ten (10) days after service upon him. Thereupon the statement and any .objections or proposed amendments shall be submitted to the circuit court for settlement and approval and as settled and approved shall be included in the record on appeal by the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken.
Ark. R. App. P.-Civ. 6(d) (2015) (emphasis added).
On March 10, 2015, after filing her appeal, Ms. Neumann filed with the circuit court her statement of evidence under Rule 6(d). On March 20, 2015, she filed in our court a “Motion to Supplement the Record and Stay. Brief Time,” praying in part for a stay of briefing schedule until “additional supplementation of the Court’s interview with the children in chambers can be adjudicated at the trial level.” Her motion informed us that her Rule 6(d) statement of the evidence had been filed in the trial court, and it asserted that additional supplementation would be necessary “after this matter has been resolved.” We subsequently granted her motion — without knowing that the trial judge had specifically disapproved the I mstatement of evidence because he disagreed with it. Had we known this fact, we would not have granted supplementation insofar as it concerned the statement. The better practice would have been for Ms. Néumann’s counsel to have informed this court, at the first opportunity and in all candor, of the circuit court’s action. Because Ms. Neumann’s statement of evidence was not “settled and approved” below, it is not a part of the record and we will'not consider it on appeal.
Ms. Neumann -argues that at the September 2014 hearing, the trial judge clearly pressured the children into agreeing to try equal time — action that she views as evidence' of the trial judge’s bias. As will be discussed later in Point III, the bias argument is hot preserved for appeal because it was not raised below. We also note that a trial court may interrogate witnesses, whether called by itself or a party, see Ark. R. Evid. 614(b), and we reiterate that Ms. Neumann requested that the court confer with the children in chambers and did not object when given the opportunity.
Ms. Neumann also asserts that at the motion for reconsideration, the judge ignored O.S.’s letter and his testimony that the equally shared time was not working for him. Any evidence of whether equal time was working went to modification of the previous order, a matter that the circuit court properly did not consider in deciding whether to take emergency measures on matters that had arisen after the previous hearing.
We need not know the ‘entire in-chambers conversation, in order to decide the merits of this appeal. Before the conference took place, the judge noted the parties’ willingness for him to talk with the children in.chambers after their in-court testimony. The judge remarked |nafter the in-chambers proceeding that the children were willing to work toward equal time with each parent, providing the substance of the in-chambers meeting. We note that a child’s preference about living with a particular parent is but one factor for the circuit court to consider. See Burr v. Burr, 2015 Ark. App. 640, at 6-7, 476 S.W.3d 195, 198-99.
For all these reasons, we hold that the court did not abuse its discretion by talking with the children in chambers after they had stated their preference in open court that Ms. Neumann become the primary custodial parent.
II. & III. Appellant’s Point V — Custody 'Award and Appellant’s Point VI — Denial of Motion for Reconsideration
Ms. Neumann contends in Point V that the trial court clearly erred by failing to award her sole custody or' primary joint custody. She contends, in Point VI that, in light pf material events that had occurred after the September 11, 2014 hearing, the trial court erred in not modifying joint-custody “possession times” at the reconsideration hearing.
The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Dorrell v. Dorrell, 2014 Ark. App. 496, at 8, 441 S.W.3d 925, 930. In deciding a petition for change of custody, the circuit .court must first' determine whether there has been a significant change in the circumstances of the parties since the most recent custody. decree. Schwarz v. Moody, 55 Ark.App. 6, 928 S.W.2d 800 (1996). In deciding whether a modification of custody is in a child’s best interest, the circuit court should consider factors such as the psychological relationship between the parents and children, the need for stability and continuity in the relationship between parents and children, the past conduct of the parents toward the children, and the reasonable preference [ 12of the children. Dorrell, 2014 Ark. App. 496, at 8, 441 S.W.3d at 930. The child’s stated preference on custody is not binding on the trial court. Hart v. Hart, 2013 Ark. App. 714, at 2, 2013 WL 6271901.
We review child-custody cases de novo, but we will not revérse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 77, 110 S.W.3d 731, 735 (2003). Because the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial' judge to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark.App. 42, 44, 256 S.W.3d 528, 529 (2007). 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. Dodd v. Gore, 2013 Ark. App. 547, at 5-6, 2013 WL 5509137.
There was somewhat conflicting , evidence at the September 2014 hearing about the children’s activities with each parent and each parent’s involvement in extracurricular activities and medical appointments, However, it .was not disputed that the parties had voluntarily expanded the visitation time awarded to Ms. Neu-mann under the court’s standard order. As discussed earlier in our opinion, the court found that Mr. Smith had not abandoned the house, and it rejected Ms. Neu-mann’s argument that the children spent the majority of their time "with her. Finding that material changes of circumstance had occurred, that the parties could work together, and that the children needed stability in their lives, the court ordered “true joint custody” with the .time to be equally split between the parties.' Although the court | ^denied Ms. Neumann’s motion for reconsideration, it issued a. temporary order to ensure no unwanted physical activity between the half'brothers while domestic-battery charges'were pending.
We hold that the circuit court did not clearly err in the findings summarized above. Having conducted a de novo review in this case, we affirm the circuit court’s order for “true” shared joint custody with time to be spent equally between the parties. See Montemayor v. Rosen, 2015 Ark. App. 597, at 4, 474 S.W.3d 114 (noting that 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).
IV.Appellant’s Point I — Denial of . Motion to Order the Sale of the Marital Residence . .
Ms. Neumann contends in-Point I that the trial court’s refusal to order the sale of. the former marital residence was an abuse of discretion and a violation of Arkansas Code Annotated section 9-12-315. We disagree.
Prior to Ms. Neumann’s filing her motion to modify and petition to sell, the children spent Thursday nights at Ms. Neumann’s house. According to testimony by C.S., weekends had been “on and off’ between the parties, and extra weekends were with Ms. Neumann. At the time of the 2014 modification hearing, the children were living in Mr. Smith’s house full time. The final modification order changed the previous awards of joint custody and visitation to “true joint custody,” .with the children rotating, between their parents’ houses at seven-day intervals. We. agree with Mr. Smith that, because neither the divorce - decree nor the modification depended on which party had custody, the change from sole custody in Mr. [14Smith to joint custody was not a factor to be considered in the sale of the house.
The circuit court found that Mr. Smith never ceased living in the former marital residence with' the children, the relevant condition precedent to listing the home for sale under the settlement agreement and modification order of 2009; the residence was. being used “in a manner, for the children”; and- that Smith had not abandoned it. The court properly ruled that, it could not order a sale of the home but that the parties themselves could decide to do so. We hold that the circuit court .did not err in.its findings, and we affirm the denial of Ms. Neumann’s petition to order a sale.
V.Appellant’s Point II — Child Support
As her second point, Ms. Neumann contends that the circuit court’s refusal to order Mr. Smith to pay child support was an abuse of. discretion and a violation of Administrative Order No. 10. The lack of a child-support order, however, was in accord with Ms. Neumann’s alternative request that neither party be required to pay child support should the court order equal custody and time with the children. A party who received the relief she requested cannot complain on appeal. Baker v. Baker, 2013 Ark. App. 543, at 7, 429 S.W.3d 389, 394.
VI.Appellant’s Point Ill-Bias
Ms. Neumann contends that the trial judge’s conduct and rulings mandate reversal due to demonstrated actual bias or the appearance thereof. She points to fourteen alleged instances, such as the judge’s questioning of several witnesses, from the September 2014 hearing and the reconsideration hearing. She concedes that she did object or move for recusal hfibelow.
To preserve a claim of judicial bias for review, an appellant must have made a timely motion to the circuit court to recuse. Grunwald v. McCall, 2014 Ark. App. 596, at 5, 446 S.W.3d 217, 221. A judge’s allegedly biased or harsh remarks are not subject to appellate review if the appellant failed to object to those statements or move for the judge’s recusal. Ashley v. Ashley, 2012 Ark. App. 230, at 3-4, 2012 WL 1111381. Ms. Neumann asserts that she was forced to raise the issue of bias only after the “final straw” occurred, when the twins told her of an in-chambers remark by the judge favorable to their paternal grandfather. As discussed in Point IV, we will not consider “recreated evidence” from the in-chambers conference. Furthermore, the twins’ statements were allegedly made after the record had been lodged on appeal. Because Ms. Neumann failed to timely object to the circuit court of any other alleged instances'of bias or appearance of bias, she has waived the issue for appellate review.
We affirm on all points.
Hixson and Brown, JJ., agree.
. The initial motion and petition are not in the record before us.
. “Unless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings ... pertaining to any contested matter before the court or the juiy.” Ark. Sup.Ct. Admin. Order No. 4(a); see also Ark. Code Ann. § 16-13-510(b) (Repl. 2010) (allowing parties, with permission of the circuit court, to waive a complete record of the proceeding); cf. Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999) (decided under a previous version of the statute when probate and chancery courts were separate from circuit courts). | [
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ROBERT J. GLADWIN, Chief Judge
| ¡Appellant, Mario Harris, appeals from his conviction by the Craighead County Circuit Court on a charge of domestic battery in the second degree. He challenges the sufficiency of the evidence supporting his conviction. We affirm.
The victim in the case, Christie Kidd, had been in a relationship with appellant for over a year. She testified that on the evening of May 30, 2014, approximately a week after the couple broke up, appellant jumped her and struck her on the head several times and on the hand at least once. She testified that on the evening of May 30, 2014, she recognized appellant’s voice and that she could see him because of a nearby streetlight.
Appellant testified that he had been in the Tunica/Robinsonville, Mississippi, area for a combined celebration of a birthday party and elementary-school graduation on May 28, 2014, and that he remained with family in the area until June 8, 2014. He testified - that |2he obtained a ride from Jonesboro to Tunica on May 28, 2014, from his estranged wife, Natasha Harris, and although she confirmed that she had given him a ride that day, she also testified that she did not know his transportation situation after she dropped him off there.
Appellant testified that Ms. Kidd was angry at him for breaking up with her and that this allegation was her attempt at vindication. He also testified that he believed that Ms. Kidd was seeing several people at one time and alleged that one of them had hurt her before and had probably committed this act. Ms. Kidd did acknowledge that she texted appellant pictures and texts to make him mad. But when asked for detail, she did not remember what she had sent to him.
At the bench trial, the circuit court denied appellant’s motion to dismiss and ruled that (1) the elements for conviction of domestic battery in the second degree were met by the State, and (2) the credibility of the victim was such that she was unequivocal and believable. The circuit court relied on Ms. Kidd’s testimony that she recognized appellant’s voice and that she was able to see him because of a streetlight near the scene of the attack.
Appellant was convicted of domestic battering in the second degree, a Class B felony, and sentenced to eighteen months in the Arkansas Department of Correction, followed by a suspended sentence of sixty months. Appellant was ordered to pay $236 in court costs, $250 to the Public Defender Commission, $250 for a DNA fee, and a $20 booking fee, all pursuant to a sentencing order filed on April 17, 2015. A timely notice of appeal was filed on May 14, 2015.
A motion to dismiss at a bench trial is a challenge to the sufficiency of the evidence. Tennant v. State, 2015 Ark. App. 81, 2015 WL 585358. On appeal, this court reviews the evidence in the light |smost favorable to the State, considering only the evidence that supports the conviction. Toombs v. State, 2015 Ark. App. 471, 469 S.W.3d 811. This court will affirm a conviction if there is substantial evidence to support it, which is evidence of sufficient force and character that it will compel a conclusion with reasonable certainty. Id. Determinations of credibility and the weight of the evidence are matters for the circuit court and not for this court to decide on appeal. Cosey v. State, 2014 Ark. App. 441, 439 S.W.3d 731. A judge at a bench trial is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant argues that the circuit court erred by failing to grant his motion to dismiss and specifically by finding that he committed the act of domestic battery in the second degree when appellant produced testimony that he had been in the Tunica/Robinsonville, Mississippi, area when the act was committed. Arkansas Code Annotated section 5-26-304(a)(l) (Repl. 2013) provides that a person commits second-degree domestic battering if, with the purpose of causing serious physical injury to a family or household member, the person causes serious physical injury to a family or household member.
In the instant case, appellant did not contest that Ms. Kidd received a serious injury; rather, he contested that he was the one who committed the act. Because Ms. Kidd admitted that she had been angry with appellant both before their break up, based on his allegedly seeing other women, as well as after their break up, appellant claims that the circuit court should have considered this a case of vengeance by Ms. Kidd and ruled that the evidence supporting appellant’s claims that he was in another state was a viable defense and a basis on which to grant his motion to dismiss.
|4We disagree and hold that substantial evidence supports appellant’s conviction for domestic battering in the second degree. The issue before us is solely one of credibility. Although appellant claims that he was not in Arkansas the night of the assault, the circuit court did not find his alibi credible.
The following evidence supports the conviction. Appellant and the victim, Ms. Kidd, maintained a romantic relationship for over a year, cohabitating from late 2013 until May, 2014. On May 22, 2014, Ms. Kidd told appellant that she intended to discontinue their relationship because he frequently came home too late at night and she was “tired of it.” Despite ending their relationship, appellant did not move his property out of the apartment he shared with Ms. Kidd and her family.
On May 28, 2014, Ms. Kidd testified that appellant was absent from the apartment when she returned from work, but his belongings were still there. She explained that she did not see appellant again until Friday, May 30, 2014. Ms. Kidd testified that on that date, at approximately 10:00 p.m., appellant attacked her as she was walking back to her apartment from visiting a neighbor. There was enough streetlight and external apartment lighting for Ms. Kidd to visually identify her assailant as appellant. Ms. Kidd also recognized appellant’s voice. In her attempt to escape, Ms. Kidd slipped in some mud. While Ms. Kidd was on the ground, appellant beat her with a black object. Appellant struck Ms. Kidd five or six times, causing severe bleeding from the back of her head and from a gash in her hand. When Ms. Kidd exclaimed, that appellant was killing her, appellant ran to a getaway vehicle and left the scene. Ms. Kidd called 911 minutes later and identified her attacker as appellant. .
|fiThe laceration to the back of Ms. Kidd’s head required staples, and the gash in her hand required stitches. The beating also caused a hematoma (the swelling of subcutaneous tissue resulting from internal bleeding) to form on Ms. Kidd’s head; Ms. Kidd has not worked since the incident. .Larry Towell, the registered nurse who treated her injuries at the emergency room, testified that the laceration to the back of her head and resulting hematoma constituted serious physical injuries.
Viewing the evidence in the light most favorable to the State, appellant was a member of Ms. Kidd’s household who intentionally and seriously injured Ms. Kidd, and his conviction was supported by substantial evidence. Although appellant provided an alibi to the.circuit court, the circuit court was not required to believe it. Just as in Houpt v. State, 249 Ark. 485, 459 S.W.2d 565 (1970), when, there is testimony on either side placing the appellant in.two different locations, the fact-finder maintains the authority to choose what testimony to believe. Substantial .evidence supports appellant’s conviction; accordingly, we affirm.
Affirmed.
Abramson and Brown, JJ.,. agree. | [
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WAYMOND M. BROWN, Judge
hAppellant Michael Edwards appeals the termination of his parental rights to his daughter A.E. (born July 11, 2012). Appellant argues on appeal that (1) Arkansas Department, of Human Services (DHS) and the attorney ad litem failed to demonstrate that termination was, in A.E.’s best interest, (2) the evidence was insufficient to establish at least one available ground for termination, and (3) appellant’s “due process rights were violated where he was incarcerated and. not given an opportunity to participate in the proceeding concerning his child.” We affirm.
A call was made to the Arkansas Child Abuse Hotline on February 26, 2014, stating that A.E. had approximately twenty bruises at different stages of healing. Appellant was | gincarcerated at this time, and A.E. was in the custody of her mother, Michelle Edwards. A.E. was taken for a health-and-safety assessment at Le Bonh-eur in Memphis, Tennessee, where it was discovered that she had two skull fractures, multiple bruising, and internal injuries. A.E.’s perpetrator was unknown. A seventy-two hour hold was taken on March 1, 2014, due to severe maltreatment and substantial risk of serious harm. DHS subsequently petitioned for emergency custody of A.E., who was approximately nineteen months old at the time. . The court entered an ex parte order for emergency custody on March 11, 2014. The court entered a probable-cause order on April 23, 2014, finding that the emergency conditions which necessitated removal still existed and ordering A.E. to remain in the custody of DHS.
On May 5, 2014, Donna Baker, A.E.’s paternal grandmother, filed a petition for guardianship of A.E. Attached to the.petition was a handwritten letter signed by both appellant and Michelle on December 28, 2012, granting Baker permission to take temporary custody of A.E. if they were absent and/or unable .to care for A.E. DHS and, the attorney ad litem filed a joint petition fpr termination of parental rights on May 19, 2014. The, petition stated the following in relation to appellant:
d. That the father, Michael Edwards, is currently incarcerated ⅛ the Morgan County Correctional Facility located in Wartburg, TN. That he is not expected to be released anytime in the near .future. ,
e. That the father has abandoned the child as defined in Arkansas Code Annotated Section 9-27-303.
A continuance order was entered on May 19, 2014, continuing the case for good cause to June 23, 2014. Appellant was appointed counsel in an order filed on June 5,2014. On that same date, appellant filed an answer to the termination of parental rights petition. In the [^answer, he affirmatively pled “lack of service of process and any and all defenses and affirmative defenses set forth under. Arkansas Givil Procedure Rules 8 and 12.” He also filed a motion for transport order on June 5, 2014, so that he could be present at a hearing, set for June 10, 2014. The court denied the motion on June 10, 2014, and the order was filed on June. 23, 2014. The adjudication hearing took place on July 2, 2014. A.E. ¡was adjudicated dependent-neglected based on “inadequate supervision and failure to protect due to the extent, nature, seriousness and the location of the injuries on the minor child and extreme physical abuse by Herbert McCaig.” The goal of the case was adoption and termination of parental rights. The adjudication order noted the appellant had been served by green card on May. 27, 2014.
In the review order filed on October 14, 2014, the court noted that an approved ICPC Placement letter on Baker was entered into evidence. The court granted Baker unsupervised alternating weekend visitation. On December 19, 2014, Paul and Tiffany Strong, A.E.’s foster parents, filed a motion to intervene. They also filed petitions for adoption and guardianship. Baker objected to the motion to intervene on January 12, 2015. DHS sought to have the Strongs’ motion and petitions dismissed in responses filed on January 15, 2015. The Strongs filed an amended petition for adoption on March 17,' 2015. Baker sought to have the petition dismissed in a response filed on March 24,2015.
Appellant filed a motion for continuance on March 31, 2015. The motion stated that appellant would be paroled on November 24, 2015, and that there were “no allegations Ragainst the defendant Michael Edwards except for that he is incarcerated.” Attached to the motion was an offender sentence letter, which reflected that appellant began an eight-year sentence on July 7, 2013, and that his release eligibility date was November 24, 2015. The letter also showed that the full expiration date of appellant’s sentence was June 29, 2021. Appellant filed a pro se letter with the court on March 31, 2015. He attached a certificate of completion for a Pro-Social Life Skills Program.
The court entered an order granting the Strongs’ motion to intervene on April 20, 2015. The order from a placement hearing held on January 30, 2015, was filed on May 18, 2015. In that order, the court acknowledged that Donna and Shad Baker had an approved ICPC home study through the state of Tennessee. The court found that it was in A.E.’s best interest to remain in the home with the Strongs, stating that “there is more stability and con-tinity of care and more structure and routine with Paul and Tiffany Strong. The Strong’s [sic] are a more traditional family ... and they have had physical custody of [A.E.] in excess of nine months.” The order further stated:
7. There is pending termination of parental rights petitions. The grandparents’ rights are derivative of the parents’ constitutional and legal rights. If the parents’ rights are severed or terminated, then the rights of the grandparents are also severed by law. The court finds it is awkward and not in the child’s best interest to be placed with the grandparents prior to the court addressing the termination of parental rights petitions.
8. [A.E.] should remain with Paul and Tiffany Strong. The placement request of Mr. and Mrs. Baker is hereby denied.
9. With regard to the visitation previously awarded to Mr. and Mrs. Baker, same is modified herein. Over the objection of the attorney ad litem, the Bakers shall continue to have alternate Saturday visitations. The visitations shall be from 10 a.m. to 4 p.m. pending further orders of the court.
LIP. Based upon the agreed stipulation of the [Bakers], through counsel, [and] the Court that the Baker’s [sic] will submit to a hair follicle test.
The termination hearing took place on April 15, 2015. Appellant was not present for the hearing, although his attorney was present. The court addressed appellant’s motion for continuance at the beginning of the hearing. Appellant’s attorney asked the court to continue the case “to allow [appellant] to be released and have an opportunity to work the plan.” The attorney further stated that the “allegations that brought the child in to Court really has nothing to do with my client, other than the fact that he is incarcerated.” The court denied the motion “finding that the Statute requires that the Court consider hearings and the timeliness of the hearings as from the viewpoint of a child rather than from the parent’s convenience.”
Sylvia Ware, a family service worker supervisor with DHS, testified that she became involved with the case on January 26, 2015. She stated that she had not had any contact with appellant, and that appellant had been incarcerated throughout the duration of the case. She said that she was unaware of any contact with or support of A.E. by appellant. She opined that A.E. was adoptable and that termination was in A.E.’s best interest; She testified that A.E. had been in foster care since coming into DHS’s custody. She stated that' appellant had not provided anything to DHS in regards to A.E. and that, to her knowledge, he had not provided anything to his parents to give DHS.
IfiAppellant’s attorney did not call any witnesses during the termination hearing. At the conclusion of the hearing, the court granted DHS’s petition to terminate appellant’s parental rights. The termination order was entered on May 26, 2015. It stated in pertinent part:
The juvenile has lived outside the home of the father for more than twelve (12) months; the father has not visited the minor child and has failed to provide '-support or- contact with the juvenile, Ark.. Code Ann. § 9-27-341(b)(S)(B)(ii)(a).
The father is currently incarcerated and sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child’s life. Ark. Code- Ann. • § 9-27-341(b)(3)(B)[viii].
Appellant filed a timely notice of appeal on June 4, 2015. This timely appeal followed.
On appeal, appellant argues that (1) DHS and the attorney ad litem failed to demonstrate that termination was in A.E.’s best interest, (2) the evidence was insufficient to establish at least one available ground for termination, and. (3) his due process rights were violated where he was incarcerated and not given an opportunity to participate in the proceeding concerning his child.
We review termination-of-parental-rights cases de novo. At least one statutory ground must exist, in addition to a’ finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. The question we must answer on appeal is whether the circuit court’s finding that the disputed fact was proved |7by clear and convincing evidence is clearly erroneous. In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to judge the credibility of the witnesses.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child, The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, dr welfare, and return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective.
An order terminating-parental rights must be based on the court’s finding by clear and convincing evidence that termination is in the best interest of the juvenile, taking int'o' consideration 'that (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm caused by returning the child to the custody of the parent. , However,' adoptability and potential. harm are merely factors to be considered — they are not elements of the cause of action and need not be establish by clear |sand convincing evidence. Rather, after considering all of the factors, the trial court .must find by clear and convincing evidence that termination of parental rights is in the best interest of the children. The harm referred to in the statute is “potential” harm, the trial court is not required to find that actual harm will result or to affirmatively identify a potential harm. Moreover, evidence on this factor must be viewed in. a forward-looking manner and considered, in broad terms. The trial court must also find by clear and convincing evidence the .existence j of a statutory ground for termir nation.
In arguing that ’ DHS and the attorney ad litem failed to demonstrate that termination was in'A.E.’s best interest, appellant contends that he was not the cause of A.E.’s injuries, that he was not found to be unfit,-and that he did-not pose any danger to A.E. DHS concedes these facts. In addition, appellant argues that A.E. was-not dependent-neglected because, prior to his incarceration, he arranged for his mother to take care of A.E. in his absence, and that his mother should- have been given preference under Ark. Code -Ann. § 9-27-355. Appellant further argues that termination was not in A.E.’s best interest because it adversely affected A.E .’s - relationship with. his mother. DHS contends - that appellant’s argument concerning his mother being a fit and willing caregiver goes beyond sufficiency and is not preserved because |flit was not raised below. We. agree. , To the. extent that appellant argues that his mother should have, been given .preference in place of termination of parental rights, appellant failed to appeal from the order setting the goal of the case to termination of parental rights and adoption.
Despite appellant’s contention, there was evidence that termination of his parental rights was in A.E,'s best interest. He had been incarcerated throughout .the life of the case. There was no evidence that he had any contact .with the child during his incarceration. Although he was set to be paroled, according to his- attoiv ney, in November, that :was seven months after the termination hearing and he still required time to. get out .and work the plan. Even assuming that appellant would be released when he hoped, he would not be able ,to immediately reunite with A.E. Viewed from A,E.’s perspective, who was less than three years old, termination of parental rights was in her best interest so . that she could achieve permanency and not have to wait in limbo for possible reunification with appellant,
To the extent that appellant argues that termination adversely affected A.E.’s relationship with his mother, there was no evidence of the nature and extent of the relationship A.E. shared with appellant’s mother. Although appellant’s mother had been granted unsupervised visitation, that visitation had been modified. And at the time of the termination hearing, appellant’s mother had not seen A.E. for ten weeks because she thought that she had to submit a negative hair follicle test before continuing visitation. Therefore, this hocase is unlike the situation in Caldwell v. Ark. Dep’t of Human Servs., where this court concluded that, because the child remained in the permanent care of her biological mother, termination of her father’s parental rights would not achieve permanency, and that preservation of the child’s -relationship with her paternal grandparents weighed against termination. Here, the parental rights of both of AJE.’s parents were being terminated, and appellant failed to demonstrate a close bond between A.E. and his mother. We are not persuaded by appellant’s argument, and we hold that the court did not clearly err when it found that termination of appellant’s parental rights was in AJE.’s best interest.
Next, appellant argues that the evidence was. insufficient to establish at least one available ground for termination. According to appellant, the. termination petition failed to plead .either ground employed by the- court at -the hearing, so both grounds- should be excluded. DHS concedes that one' ground found by the court for terminating appellant’s parental rights was not pled and should not be considered. Although appellant admits that the termination petition had a--sentence in it that stated ‘that he was incarcerated and not expected to be released in the near future, he.contends that this was not enough to place him on notice that his parental rights were subject to termination based upon the substantial-incarceration ground. In addition, he argues that even if the ground was sufficiently pled to place him on notice, there was no sufficient evidence to support that ground because DHS and the ad -litem did not produce any evidence or proof of his sentence. These arguments are without merit.
luAppellant never raised an argument about lack of notice or failure to plead grounds properly below. In fact, his attorney stated that the only evidence against appellant was his incarceration. To the extent that appellant argues that evidence of his sentence had to be placed into evidence by DHS or the ad litem, he is mistaken. Evidence of the length of his sentence was properly before the court in the form of appellant’s motion for a continuance. The sentence letter attached to appellant’s motion showed that appellant had been sentenced to eight years’ imprisonment in July 2013. The court addressed and denied appellant’s motion at the beginning of the termination hearing. Termi nation of parental rights is warranted if the parent is sentenced to a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life. It is the prison sentence itself, not the potential release date, that determines whether this statutory ground is satisfied. Here, appellant was sentenced to eight years’ imprisonment. .This is a substantial period of time for a child less than three years of age. Accordingly, we affirm this ground for termination.
Finally, appellant argues that his due process rights were violated because he was not given an opportunity to participate in the proceeding concerning his child due to his incarceration. This argument focuses on both the placement hearing and the termination hearing. However, this argument was not raised below and is not properly before us. Appellant contends that he should have been allowed to participate at the termination hearing and that the lack of his presence at that hearing should be a Wicks exception.
112In Wicks v. State, the Arkansas Supreme Court reaffirmed the importance of the contemporaneous-objection rule while outlining a few finite exceptions to the rule. The third exception “relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.” In Wicks, the court stated that a reversal on such grounds would be “an extremely rare exception” to the rule. We have interpreted the third Wicks exception to mean that “no objection is required to preserve an issue for appeal where the error is so flagrant and egregious that the trial court should, on its own motion, have' taken steps to remedy it.” Therefore, in this case, we must determine whether appellant’s absence from the termination hearing was a flagrant and egregious error requiring the trial court to intervene. Federal courts have found that prison inmates do not have a due-process right to be present at civil hearings. This includes termination proceedings, as long as the inmate-parent is represented by counsel at the hearing, the counsel participates by making evidentiary objections and cross-examining witnesses, and the inmate has the opportunity to present testimony by deposition or other recorded format' if that testimony could influence the outcome of the proceedings.
| isHere, although appellant was not present, his attorney fully participated during the hearing. There is no indication that appellant’s due-process rights could not have been safeguarded in his absence. Therefore, there was no reason for the court to step in on its own motion and raise appellant’s due-process argument. Thus, this does not fall within the third Wicks exception, and we cannot address it due to lack of preservation.
Additionally, appellant contends that his due-process rights were violated because he was not properly served with notice of the petition for termination of his parental rights. Although appellant raised improper service of process in his answer to the termination petition, he never raised it again. His attorney appeared at the termination hearing on appellant’s behalf and participated fully without ever objecting to lack of service. Therefore, any argument concerning service was waived.
Affirmed.
Gladwin, C.J., and Abramson, J., agree.
. A.E.’s mother, Michelle Edwards, consented to the termination of her parental rights and is not a part of this appeal.
. McCaig was Michelle’s boyfriend.
. Michelle signed a consent to the termination of her parental rights at the beginning of the hearing.
. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
. Ark. Code Ann. § 9-27-341 (Supp. 2013).
. Fields v. Ark. Dep’t of Human Servs., 104 Ark. App. 37, 289 S.W.3d 134 (2008).
. Matlock v. Ark. Dep’t of Human Servs., 2015 Ark. App. 184, 458 S.W.3d 253.
. Osborne v. Ark. Dep't of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007).
. Id.
. Ark. Code Ann. § 9-27-341(a)(3).
. Ark. Code Ann. § 9 — 27—341 (b)(3)(A)(i) & (ii). .
. Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251.
. Id.
. Id.
. Id.
. Ark. Code Ann. § 9 — 27—341(b)(3)(B).
. See Chafin v, Ark. Dep’t of Human Servs., 2011 Ark. App. 496, 2011 WL 3837045.
. See Adams v. Ark. Dep’t of Human Servs., 2013 Ark. App. 263, 2013 WL 1665876.
. 2010 Ark. App. 102, 2010 WL 374432.
. Ark. Code Ann. § 9-27-341 (b)(3)(B)(viii).
. Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356.
. 270 Ark. 781, 606 S.W.2d 366 (1980).
. Wicks, 270 Ark. at 786, 606 S.W.2d at 369.
. Id., 606 S.W.2d at 369.
. Baker v, Ark. Dep't of Human Servs., 2011 Ark. App. 400, ¶3, 2011 WL 2140380.
. See Fruit v. Norris, 905 F.2d 1147, 1150 n.6 (8th Cir.1990).
. See Cook v. Boyd, 881 F.Supp. 171, 175 (E.D. Pa. 1995); In re Interest of J.S., 470 N.W.2d 48, 52 (Iowa Ct.App.1991).
. See Vogel v. Ark. Dep’t of Human Servs., 2015 Ark. App. 671, 2015 WL 7289449.
. See Trelfa v. Simmons First Bank of Jonesboro, 98 Ark. App. 287, 254 S.W.3d 775 (2007). | [
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BRANDON J. HARRISON, Judge
| iTasha Sims hired Elite Homes, Inc. (Elite Homes) to be the general contractor for a custom “dream” home she intended to build mear Benton, Arkansas. Tasha Dailey (now Sims) and Ryan Roggasch (a representative for and president of Elite Homes) signed the written contract. The contract stated that Elite Homes
will be following the guidelines, rules, and codes provided by the state of Ar■kansas in the construction of this home and ,.. will be ... overseeing the project till completion. It is our intention to -provide the greatest quality of product and craftsmanship during and after construction completion.... The total price for* providing these services is $20,000[.]
The project was estimated to begin in late November 2005 and be completed by the end of March 2006. Elite Homes promised to work diligently and at the pace requested by the home owner. Tasha paid Elite Homes $10,000 before construction of the new home |2began. Elite Homes performed the general contracting services from November 2005 until July 2006. During that time, Roggasch introduced Tasha to John Sims; Tasha and John eventually married.' In September 2006, Tasha and John filed a complaint against Elite Homes, alleging that it had breached the terms of the contract and breached certain implied warranties. Attached to the Simses’ complaint was an exhibit of “Estimated Construction Cost” from Elite Homes, dated 21 November 2005. The document stated that the estimated cost to build the residence was $231,708. Elite Homes answered the Simses’ complaint and counter-claimed for breach of contract, seeking the remaining $10,000 under the contract’s terms.
In August 2009, the Simses filed an amended complaint that incorporated their original complaint. The amended complaint added Ryan Roggasch as a defendant, alleging that he' had represented to them that he was “covered by an insurance policy which would cover negligent workmanship.” They also alleged that the home was built in a 'negligent manner and that Roggasch and Elite Homes had violated Arkansas’s Deceptive Trade Practices Act.
In March 2011, a jury awarded Tasha .Sims and John Sims $140,000 in damages following a trial in Saline County Circuit Court, The jury rejected Roggasch’s and Elite Homes’s breach-of-contract counterclaim. In June 2011, the circuit court entered a $209,244 judgment against Roggasch and Elite Homes; the final judgment amount included prejudgment interest and attorney’s fees and costs. Roggasch and Elite Homes appeal that judgment.
On appeal, appellants make six points:
|⅞1. The circuit court erred in permitting John Sims to be a party to' the lawsuit.
2. The circuit court erred in instructing the jury on a violation of the Deceptive Trade Practice Act.
3. The circuit court erred when it instructed the jury on both negligence - and contractual claims.
4. The circuit court erred when it al- ‘ lowed the jury to consider any claims against Ryan Roggasch individually.
5. The circuit court erred when it did not request that the jury allocate damages for each claim for each defendant.
6. The circuit court abused its discretion in awarding attorney’s fees and prejudgment interest.
We affirm the judgment of the circuit court.
Point 1: John Sims
For their first point on appeal, appellants argue that no legal authority exists to give John Sims standing to sue them.- During’the course of the litigation, the circuit court repeatedly denied -the appellants’ request to dismiss Sims as a plaintiff. To be a proper plaintiff in an action, one must have an interest which has been adversely affected or rights which have been invaded. City of Dover v. City of Russellville, 352 Ark. 299, 100 S.W.3d 689 (2003). Only a claimant who has a personal- stake in the outcome of a controversy has standing. Pulaski Cnty. v. Ark. Dem. Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007). ^Courts will not allow suit by one who is a “stranger to the record” or for the purpose of vindicating an abstract principle of justice. City of Dover, supra.
The appellants are correct that John Sims was not a party to the. written contract with Elite Homes and would not have standing on the breach-of-contract claim. Yet we find no error in this case because the jury was instructed that the contract was between Tasha Sims, and Elite Homes only. Moreover, appellants mention, but do not develop, their point , that John Sims did not have standing to bring a negligence or deceptive-trade-practices claim. We do not research or develop arguments for an appellant on appeal. Smith v. Heather Manor Care Ctr., Inc., 2012 Ark. App. 584, 424 S.W.3d 368. Point one is ‘ affirmed.
Point 2: Deceptive Trade Practice
Appellants next argue that the circuit court erred--in instructing the jury on a violation of the deceptive trade practices act because (1) the Simses’ expert witness Mr. Looney testified that workmanship insurance is not available to those in residential construction; (2) the Simses failed to prove that Roggasch’s statement about insurance proximately caused their damage; and (3) the deceptive trade practices claim was a ruse for extending the statute of limitations on a fraud claim. ■ ■
The court instructed the jury on the Trade Practices Act as follows:
TASHA SIMS and JOHN SIMS claim damages from RYAN ROGGASCH and ELITE HOMES OF ARKANSAS, INC. for using deceptive trade practice and have the burden of proving each of three essential propositions:
First, that he/she has sustained damages; ’’
Second, that RYAN ROGGASCH and ELITE HOMES OF ARKANSAS, INC. used a deception, fraud, or false pretense or concealed, suppressed, or omitted a material fact in connection with the sale of goods and/or services; or knowingly took advantage of TASHA SIMS arid JOHN SIMS, who were reasonably unable to protect his/her interest; or erigaged in Ran unconscionable, false, or deceptive act or practice in business, commerce, or trade; and
Third! that RYAN ROGGASCH and ELITE HOMES OF ARKANSAS, INC.’s conduct was a proximate cause of TASHA SIMS and JOHN SIMS’s damages.. <.
If you find from, the evidence in this case that each of these propositions has been proved, then your verdict should be for TASHA SIMS and JOHN SIMS; but if, on the other hand, you find from the evidence that any of these propositions has not been’ proved, then your verdict should be for RYAN ROG-GASCH and ELITE HOMES OF ARKANSAS, INC.
The jury-verdict forms reflect that the jury found against Roggasch and Elite Homes on the Simses’ deeeptive-trade-practice claim. The' appellants did not make a timely objection to this particular instruction at trial, so they may not argue about it now. See St. Louis Sw. Ry. Co. v. Grider, 321 Ark., 84, 88, 900 S.W.2d 530, 532 (1995) (outlining procedure for preserving jury-instruction error). Appellants’ point two is labeled as a jury-instruction issue, but the substance of point two is that Roggasch and Elite Homes have challenged the sufficiency of- the evidence on the deceptive-trade-practices claim at trial during their directed-verdict motions and here on appeal. We therefore address .the substance of their sufficiency arguments.
Our standard of review of the denial of a motion for - directed verdict is whether the jury’s verdict is supported by substantial evidence. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). Substantial evidence is that- which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. We only review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to .the party on whose behalf judgment was entered. Id.
IsTasha Sims testified that Roggasch “looked really young” to her but that he told her he was twenty-six and had built between sixty and seventy homes. Tasha explained that Roggasch said he had three educational degrees, including an engineering degree. She also told the jury that Roggasch “definitely” toíd her he had “workmanship” insurance. According to Tasha, she told Roggasch that, “the most important thing” to her was that he use a waterproofing product called Bituthene So that water could not enter into the basement and that Roggasch had agreed to use it. The total estimate Roggasch presented to build the- approximately 3,000 square-foot house was $180,000, according to Tasha.
Tasha later found out that Roggasch had misrepresented some facts.. He was only twenty-one years old, had- no college education, and, -according to Roggasch’s trial testimony, had only “possibly built twenty or thirty residential homes.” On ■ cross-examination, Roggasch indicated that he did mainly cabinetry and - other finishing processes on the houses he had built. Tasha- also testified that Roggasch and Elite Homes used a product called “drylok” instead of -the Bituthene that Tasha had insisted- they use. According to Tasha, Roggasch “absolutely refused to put it on.” When Tasha tried to file an insurance claim for shoddy' workmanship against Elite Homes, she was told that Elite Homes had no such policy. ■
There was also substantial and cumulative expert and lay testimony about the serious structural problems that emerged while Roggasch was in charge of the home building. For example, Ben Reeves, Tar sha Sims’s loan officer, testified that there was an exterior wall on the house that “you could actually push and it would move” and that the deck located twenty to thirty feet off the ground was secured only by a 4 x 4 post that was not anchored 17to the main structure. James Higgins, a contractor Tasha hired to help fix some of the problems, said that there was a load-bearing wall without a foundation under it, that the roof leaked because it was not installed properly, and that the basement flooded with up to three to four inches of standing water at a . time. Gary Looney, a local contractor, testified that it was “not possible” to build the home for the $180,000 Roggasch had estimated and that it would cost $140,000 to bring the house “close to code.” He also said that “workmanship” insurance policies, were not available to residential contractors.
Substantial evidence existed for the jury to conclude that Roggasch, acting for Elite Homes, omitted or concealed material- facts in connection with the home services. He made certain representations about his age, education, experience, and insurance coverage that were false. There was sufficient evidence for the jury to- reasonably conclude that the appellants’ failure to-speak truthfully caused the Simses damage. They had to hire an experienced contractor to repair major problems, costing $140,000, or so the jury could have concluded. Looking at the evidence in the light most favorable to the Simses, as our standard of review requires, substantial evidence supports the jury’s conclusion that Roggasch and Elite Homes violated the act. To the extent that Roggasch and Elite Homes argue that the Simses’ deceptive-trade-practice claim was a ploy to extend the statute of limitations on a fraud claim, they never received a ruling from the circuit court on the issue; and they may not raise it for the first time' on appeal. See Hodges v. Huckabee, 338 Ark. 454, 465, 995 S.W.2d 341, 349 (1999) (“This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has lathe burden to obtain a ruling. Matters left unresolved simply may not be raised on appeal.”). We affirm on point two.
- Point 8: Negligence and Contractual Claims
. Appellants contend that the circuit court erred when it instructed the jury on negligence and contractual claims. “An underlying principle of compensatory damages is that the plaintiff, although entitled to a fair, adequate and complete recovery, should not obtain a double recovery.” Howard W. Brill, 1 Arkansas Law of Damages § 4:8 (5th ed.2004).’ Apart from a bare statement that the court erred in instructing the jury on the negligence and breach-of-contract claims, the appellants make no convincing or cohesive arguments for reversal. They conflate the measure of damages recoverable for breach of contract, negligence, and breach of implied warranties and do not provide any citations to authority on this point. Appellants also raise a statute-of-limitations argument with regard to negligence, but there is no evidence that this issue was ever raised to or ruled on by the circuit court. Roggasch and Elite Homes bear the burden, when arguing on appeal, to demonstrate error, and they have not done so. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989); see also Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 420, 291 S.W.3d 179, 185 (2009) (appellant must present -convincing arguments .and citations to authority). Appellants’ point three is affirmed.
Point k- Ryan Roggasch Individually
Roggasch argues that he should not be personally liable because he acted in his capacity as president of Elite Homes when hé built the home, and' the court erred when it allowed the jury to pierce the corporate veil; We do not decide whether the corporate veil | awas pierced in this case on the Simses’ tort and contract claims. We instead affirm because there is a separate and unchallenged basis upon which the jury could hold Roggasch individually liable in this case: Ryan Roggasch could be held individually liable by the jury for the Simses’ damages because he violated the deceptive trade practices act.
Arkansas Code Annotated section 4-88-113(d)(1) (Repl.2011), which was pled in the Simses’ amended complaint, states:
Every person who directly or indirectly controls another person who is in violation of or liable under this chapter and every partner, officer, or director of another person who is in violation of or liable under this chapter shall be jointly and severally liable for any penalties assessed and any monetary judgments awarded in any proceeding for civil enforcement of the provisions of this chapter, provided that the persons to be held jointly and severally liable knew or reasonably should have known of the existence, of the facts by reason of which the violation or liability exists.
Because we have found substantial evidence supports the jury’s finding on the deceptive-trade-practices claim, we see no error in Roggasch being held individually accountable under section (d)(1), as an officer of the corporation Elite Homes. Point four is affirmed.
Point 5: Damages
Roggasch and Elite Homes maintain that the circuit court erred in not requesting that the jury allocate damages for each claim against each defendant. At trial, separate special-verdict forms were submitted to the jury on Tasha’s claim for breach of contract against Elite Homes, the Simses’ claims for breach of implied warranties and for negligence against Rog-gasch and Elite Homes, the Simses’ claim for Arkansas Deceptive Trade Practices against Roggasch, and the Simses’ claim for Arkansas Deceptive Trade Practices against Elite Homes. In short, the jury assessed the defendants/appellants’ liability for each claim separately. The same, however, cannot be said about how the jury allocated the damages |inaward. Here, there was only one general verdict on damages. It stated: “We, the jury, assess . the Plaintiffs’ damages at $140.000[.]”
The appellants objected during a conference with the circuit court, arguing that-the instruction
lumps all the damages in together for all different causes of actions.... [I]t’s not clear as to what ... is for negligence, what [ ] is for implied warranty or what amounts are being awarded for any contract dispute ... [TJhere should be one for each type of damage that’s awardable •... I don’t know that you can tell from the verdict forms and from the instructions what exactly ... [the jury] [is] awarding it for.
After some further discussion and argument, the. circuit court told appellants’ counsel. “Your objection is noted and I’m [going to] give these instructions that the Plaintiff has submitted.” The' jury was instructed that if the Simses were damaged by appellants due to “negligence, breach of contract, and/or breach of warranties.” then the Simses were entitled to past and future expenses for necessary repairs. Roggasch and Elite Homes did not proffer any jury instructions containing a separate allocation' of damages on each separate claim.
We hold that.the appellants’ argument that the court should have instructed the jury to determine damages for each claim and defendant separately is not preserved. Arkansas Rule of Civil Procedure 51 states that “no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.” The appellants never proffered special interrogatories or special-verdict forms for the jury to award separate damages for each successful claim. Therefore, their argument that the court failed to correctly instruct the jury regarding separate damages for each defendant is waived. See Ludwig v. Bella Casa, LLC, 2010 Ark. 435, 372 S.W.3d 792. Because we must take the jury’s “lump sum” damage award as we find it, we cannot determine the amount of ..money |nthat may have been awarded on each separate legal claim. In other words, the damages award in this case is a finding upon the whole case. See Tyson Foods, Inc. v. Davis, 347 Ark. 566, 579, 66 S.W.3d 568, 576 (2002) (“When special interrogatories concerning liability or damages are not requested, we are left in the position of not knowing the ■basis for the jury’s verdict, and we will-not question nor theorize about the jury’s findings.”); We affirm point-five.
Point 6: Prejudgment Interest . and Attorney’s Fees
Ás their final point, Roggasch and Elite Homes contend that the circuit court abused its discretion in assessing prejudgment interest and. attorney’s fees. The Simses filed a petition for attorney’s fees, costs, and prejudgment interest in April 2011 after the jury trial; attached to the petition was an affidavit by the Simses’ attorney. The record shows that the appellants never responded to the Simses’ petition for attorney’s fees and prejudgment interest. The court did not enter a judgment awarding prejudgment interest and attorneys’ fees until June 2011. Be-cáuse Roggasch and Elite Homes failed to respond to the Simses’ petition for attorney’s fees and prejudgment interest, they never raised before the circuit court the arguments they now make * on appeal. Arguments not raised at the circuit court level are not considered on appeal. Bd. of Dirs. of City of Hot Springs v. Pritchett, 2015 Ark. 17, 454 S.W.3d 223. We therefore affirm on point six.
Affirmed.
Vaught and Hixson, JJ.; agree.
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CLIFF HOOFMAN, Judge
| lAppellant Thresa Kay' Shamburger appeals from the circuit court’s order granting summary judgment and dismissing her complaint against appellees Robert. Sham-burger; Sarah Jane Shamburger; James Shamburger, Jr.; Ricky Alan Johnson; Karyn' Ann Johnson; ‘ S.E. Management, LLP; Bryant Hospitality, LLP; Winners Circle Hospitality, LLC; CMH Management, LLP; and SJS Management, LLP, in appellant’s suit for breach of the partnership and buy-sell agreements associated with five limited liability partnerships (LLPs). The circuit court’s order also granted relief to appellees Sarah Jane and Robert Shamburger on their counterclaim requesting specific performance of their offer to purchase appellant’s interest in the various LLPs for $200,000. In addition, the circuit court awarded $10,500 in attorney's! afees to appellees. Appellant argues ' on appeal that the circuit court erred by granting summary judgment to appellees because the specific death-or-divorce. provision in the parties’ buy-sell agreements was mandatory and applied to this case rather than the general buy-sell provision utilized by appellees. Appellant further argues that, in the event we reverse the circuit court’s grant of summary judgment, the award of attorney’s fees should also be reversed because appellees would no longer be the prevailing party. We agree with appellant’s arguments and reverse and remand. - '
Thére are five LLPs at issue in this case: (1) CMH Management, LLP; (2) S.E. Management, LLP; (3) Bryant Hospitality, LLP; (4) Winners Circle Hospitality, LLP; and (5) SJS Management, LLP. At the time these LLPs were created, they were each composed of six partners, or three married couples: Sarah Jane and Robert Shamburger, Karyn Ann and Ricky Alan Johnson, and Thresa Kay and James Shamburger, Jr. Each partner had a 16.667% interest in each of the five LLPs. ' ’
The partners executed partnership agreements in connection with each LLP, as well as separate buy-sell agreements setting forth the required ' procedure through ' which partners could . transfer their interests. The buy-sell agreements for S.E. Management, LLP; SJS Management, LLP; Winners Circle 'Hospitality, LLP; and Bryant Hospitality, LLP, each contained similar language regarding the transfer of a partner’s interest. • As an example, the | relevant provisions of the buy-sell agreement for Bryant Hospitality, LLP, are set forth below:
1. There shall be no voluntary sale or withdrawal by a partner for a period of five (5) years from the date of formation of the company without the unanimous consent of all partners. Thereafter, the parties agree that the only manner, in which any of the> partners may transfer a partnership interest or cause a partial dissolution of the company shall be in the manner set forth herein:
(a) Any couple may give notice to both individuals of the other couples, or to any single partner, of .an intent to either buy the others’ entire company interests or to sell their entire company interest. Such notice shall contain one price at which such transaction shall occur. The offeree couples, or any single partner, shall, for sixty (60) days, have the option to either buy the offerors’ entire interests for such price, or to sell their entire interest for such price. Acceptance of either option shall be made in writing and tendered to both individuals of the offering couples within the 60-day time period.
(c) If neither option is timely accepted , by both individuals of the offeree couples, the offer shall be deemed an offer to purchase only, and acceptance of such offer shall be presumed.
3. In' the event of the death or divorce of a partner, the purchase' pricé of such partner’s interest, and the spouse’s interest, or the interest of both in the event of common disaster, shall be the higher of the fígurés achieved in paragraphs (a) and (b) below:
(a) The aggregate room revenue, reduced by deferred maintenance, for the preceding thirty-six months (or so long as the partnership has been in business; if less than that time), as reflected on the books of the partnership, multiplied by the partner’s percentage ownership.
(b) The applicable percentage of partnership interest of ,the value of the real property, with all improvements and appurtenances located thereupon, as determined by the average of two appraisals performed by properly qualified and licensed professional appraisers working the central Arkansas area.! If the difference in value between the two appraisals is greater than 10%, then the two appraisers shall select a third appraiser, similarly qualified to perform an | ¿appraisal, and the value shall be determined by the average of the three appraisals.
CMH Management, LLP’s buy-sell agreement is very similar to the one set out above, although it contains additional language in subsection (b). of Paragraph 1, which states that “[t]he terms of the sale shall be as described hereinafter in Paragraph 2.” Paragraph 2 contains the provi sion discussing a transfer in the event of the death or divorce of a partner and is not different in any other material respect from Paragraph 3 in the. other buy-sell agreements.
Appellant and her husband, James, divorced in January 2010, On October 15, 2013, Sarah Jane and Robert Shamburger mailed a letter to appellant and James, stating that their divorce proceeding had “adversely affected the operation of all the family partnerships” and that, “[i]n an effort to avoid continued disagreements and acrimony harmful to the businesses we propose to purchase your collective interest in all the partnerships, for a total price of $400,000, or $200,000 to each of you.” The letter further referred appellant and James to the buy-sell agreements associated with each partnership and stated that they had sixty days from their receipt of the letter to make their election. ’
Appellant received the letter on October 20, 2013, but did not respond. Instead, she filed a complaint against appellees on December 17, 2013, alleging that her divorce from James had triggered the terms of the buy-sell agreements dealing with a divorced party’s interest and that appel-lees were attempting to bypass that provision by attempting to invoke the transfer provision set forth in Paragraph 1 of the agreements. In order to determine the value- of her interests, appellant had also requested an accounting of the income and expenses for each of the LLPs, and she alleged that appellees had failed and refused to provide her with |Bthis information. Appellant requested an order from the circuit court directing that a detailed accounting be provided for each LLP, determining that the attempted buy-sell arrangement by Sarah Jane and Robert Shamburger was in violation of the buy-sell agreements-, and ordering a dissolution of the LLPs.
In their answer,- appellees denied appellant’s allegations and claimed that the divorce provision relied on by appellant applied only to the purchase.by one spouse-partner of another spouse-partner’s interest following their.divorce and that it did .not apply to, the situation in this case. .Instead, appellees asserted that they were exercising the.-alternative provision set forth in Paragraph 1 of the buy-sell agreements. Appellees also claimed that they had provided all of the financial documentation requested by appellant on October 11,2013.
.Separate appellees Sarah Jane and Robert Shamburger filed a counterclaim against appellant, alleging that appellant had failed to respond to their purchase offer within the sixty-day period required by the buy-sell agreements and that the offer should therefore be deemed an offer to purchase her interest for $200,000. Robert and Sarah Jane requested that the circuit court order specific performance of the terms of the buy-sell agreements and order appellant to execute all necessary documentation required for the sale.
Appellees filed a joint, motion for summary judgment on May 23, 2014, asserting that there were no material issues of fact in dispute and that the plain language of the buy-sell agreements provided for two independent and alternative methods for partners to acquire the interest of another couple. Appellees claimed that appellant was seeking to avoid the enforcement of the purchase offer by relying on a different and .“considerably more expensive |,¡provision” dealing with divorced partners, a provision that appellees argued was intended to apply only to a purchase between divorced partners.
A hearing was held on appellees’ summary-judgment motion on August 4, 2014. After hearing arguments of counsel, the circuit court took the matter under advise ment and entered an order on September 80/2014, granting both appellees’ motion and the request for specific performance contained in Sarah Jane and Robert Sham-burger’s counterclaim. The court did not rule on the other claims that were raised in appellant’s complaint. Appellant filed a motion for findings of fact and conclusions of law, which was deemed denied after thirty days. Appellees filed a motion- for attorney’s fees on October 1,2014.
After another hearing, the circuit court entered an amended final order on January 15, 2015. The court granted appellees’ motion for summary judgment, finding that there were no material facts in dispute; that there was no ambiguous language in the agreements; that there were no inconsistencies between general and specific clauses Of the agreements; and that Paragraphs 1 and 3 could be read in conjunction so that enforcement of one would not neutralize enforcement of’ the other. In addition, the court granted the relief for specific' performance requested in the counterclaim and directed appellant to execute the nécessary sales documentation to convey her interest in the LLPs to Sarah Jane and Robert Shamburger. The court dismissed' appellant’s complaint in its entirety, including all claims and requests for relief brought therein. The order also awarded attorney’s fees of $10,500 to ap-pellees. Appellant timely, appealed from this amended order on January 16, 2015.
Summary judgment is to be granted by the trial court only when there are no genuine tissues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Chamberlin v. State Farm Mut. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001). In reviewing a grant of summary judgment, an appellate court determines if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of-the motion left a material question of fact unanswered. Id. We view the evidence in the -light most favorable to the party against whom the motion for summary judgment was filed and resolve all doubts and inferences against the moving party. Id. -
Appellant does not argue on appeal that summary judgment was inappropriate because genuine issues of material fact remain, nor does she contend that the language used in the buy-sell agreements was ambiguous. Instead, appellant argues that the circuit court erred in interpreting the agreements to find that' Sarah Jane and Robert Shamburger were allowed to elect which valuation method to use when attempting to purchase her interest in the LLPs.
As this court stated ,in Tri-Eagle Enterprises v. Regions Bank, 2010 Ark. App. 64, 5-6, 373 S.W.3d 399, 403-04:
When a contract is free of ambiguity, its construction and legal effect are questions of law, for the court to determine. When contracting parties express their intention in a written instrument in clear and unambiguous language, tt is the court’s duty to construe the writing in accordance with the plain meaning of the language employed.
(Internal citations emitted). On appeal from a trial court’s determination of a purely legal issue, we must decide only if its interpretation of the law was. correct, as we give no deference to the trial court’s conclusion on a. question of law. Lamb v. Rodriguez, 2015 Ark. App. 248, 2015 WL 1756966; Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark.App. 253, 236 S.W.3d 551 (2006).
In support of her argument that the death-or-divorce provision in the buy-sell ^agreements applied under the circumstances of this case rather than- the provi sion utilized by appellees, appellant cites to two- different rules of contract construction. First, appellant discusses the rule of construction stating that “where two provisions of a contract conflict, the specific provision controls over a more ■ general provision, as it is assumed that the specific provision expresses the parties’ intent.” Millwood-RAB Mktg., 95 Ark.App. at 260, 236 S.W.3d at 556-57. Appellant contends that, pursuant to this rule of construction, the specific death-or-divorce.provision controlled over the more general provision in Paragraph 1 of the agreements. ■
We applied this rule of construction in Millwood-RAB Mktg. in the context of country club memberships.. In that case, members of the country club ha,d signed a membership agreement entitling the members and their guests to free green fees. Id. at 256, 236 S.W.3d at 554. The membership agreement also stated that the members were subject to the rules and regulations contained in the country club’s handbook, which could be amended at any time. Id. at 257, 236 S.W.3d at 554. The handbook was later amended to require guests to pay green fees, and some of the members filed suit for breach of contract. Id. at 258, 236 S.W.3d at 555. We affirmed the trial court and held that, under our applicable rules ofi contract construction, the more specific provision regarding free green fees controlled over the more general provision authorizing the country club to amend the handbook. Id. at 260, 236 S.W.3d at 557.
This rule was also applied in American Investors Life Ins. Co. v. Butler, 76 Ark.App. 355, 65 S.W.3d 472 (2002), where we held that a provision in a health-insurance policy regarding a specific cancer treatment applied instead of a more general policy exclusion for experimental | treatments. We noted that this interpretation gave effect to both clauses in the contract, as the medical procedure at issue, while it could be experimental, was' a covered expense if certain conditions contained in the specific clause were met. Id. at 362, 65 S.W.3d at 476.
Similarly, in this case, we agree with appellant that the specific provision governing transfers in the event of a "divorce or death of a partner controls over the more general provision found in Paragraph 1. Appellees argue that Sarah Jane and Robert Shamburgfer’s' offer to purchase appellant’s and her ex-husband’s interest was not necessarily due to the divorce. However, this argument is belied by Sarah Jane and Robert Shamburger’s statements in their, offer letter that “[t]he divorce proceeding between you has adversely affected the operation” of the LLPs and that the- offer to purchase was being made in order “to- avoid continued disagreements and acrimony.” Appellees also contend that the death-or-divorce provision is not more specific than the p'róvision in Paragraph 1, and they compare the length and detail of the two provisions at issue. As appellant responds, however, it is the fact that the death-or-divorce provision applies only under specific and limited circumstances that renders it controlling, over the more general provision in Paragraph 1, not the specificity of the language used to describe each method of purchase.
Appellees- further argue that the death- or-divorce provision does not apply in this case because it was intended to apply only when a partner dies or between two divorcing-partners. Appellees’ suggested interpretation is not persuasive. There is nothing in the language of any of the death-or-divorce provisions that limits-its application to those particular situations. In fact, this interpretation directly conflicts with the language in the CMH Management buy-sell agreement, which specifically states that in the event of death or divorce, “the remaining 110couple partners” have the right to purchase the interest of the affected couple. In addition, this interpretation does not make sense in light of the language used in the other agreements that refers to the purchase of both the deceased or divorced partner’s interest, “and the spouse’s interest[.]” (Emphasis added.)
In addition to the rule of construction discussed above, appellant contends that the use of the word “shall” in each buy-sell agreement’s death-or-divorce provision further supports her claim that application of this provision was mandatory under the circumstances in this case. As appellant argues, “shall” is defined as “[h]as a duty to” or “is required to.” Black’s Law Dictionary (10th ed. 2014). Our supreme court has further held that “shall,” when used in a contract provision, means that compliance with that provision is mandatory. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001).
Although appellees • argue that there is no conflict between the two different purchase provisions in’ the buy-sell agreements and that the provisions merely offer independent' and alternative options for purchasing another partner’s interest,- the combination'of the specific nature of the death-or-divorce provision and its use of mandatory language such as “shall,” indicates that compliance with this particular provision was required under the circumstances in this case.. Appellees also contend that interpreting the death-or-divorce provision as mandatory supersedes the procedure set forth in Paragraph 1 of the agreements and “neutralizes” that provision in violation of our rule of construction that we will not adopt an interpretation neutralizing a provision if the various clauses of a contract can be reconciled. See, e.g., RAD-Razorback Ltd. P’ship v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). We disagree because interpreting the application of the death-or-divorce provision |nas mandatory in this case does not mean that- the procedure set forth in Paragraph 1 of the agreements does not apply in all other situations that do not involve the death or divorce of a partner. Furthermore, as appellant argues, it is also possible to reconcile the two provisions in such a way that the general procedures set forth in Paragraph 1 apply, even in the event of a divorce or death of a partner, but the value of the partner’s or couple’s interest is determined pursuant to the formula set forth in the death-or-divorce provision.
Based on our rules of construction, we agree with appellant that the circuit court erred in interpreting the buy-sell agreements in such a manner as to' find that the death-or-divorce provisions did not apply to the offer to purchase appellant’s interest in the LLPs. Accordingly, we reverse the circuit court’s order granting summary judgment and remand for further proceedings. As appellant argues, by reversing the award of summary judgment to appel-lees, the award of attorney s-fees must also be reversed, as appellees are no longer the prevailing party.
Reversed .and remanded.
Gruber and Whiteaker, JJ., agree.
. S.E. Management, LLP’s buy-sell agreement differs only in that there is no five-year prohibition on the voluntary sale or withdrawal by a partner as is found in paragraph 1 of the other agreements. Paragraph 1 of SJS Management, LLP’s agreement also includes an exception to the five-year limitation in the event of the death or divorce of a partner, which the other agreements do not contain. In addition, the buy-sell agreements for each LLP set forth different formulas for calculating the purchase price upon the death or divorce of a partner. None of these distinctions are material to the issues raised in this '■appeal. | [
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KENNETH S. HIXSON, Judge -
[ lAppellee Shawn Pope worked as an assistant manager for appellant Lowe’s Home Centers, and she filed a workers’ compensation claim alleging compensability for an accidental neck injury caused by a specific incident as well as a gradual-onset lower-back injury. The Workers’ Compensation Commission denied com-pensability for a neck injury, but found that Shawn proved that she sustained a compensable gradual-onset back injury. The Commission awarded medical benefits associated with the compensable back injury.
Lowe’s now appeals,' arguing that substantial evidence dobs not support the Commissioii’s finding that Shawn sustained' a compensablé. gradual-onset back injury. Shawn has filed a cross-appeal, arguing that substantial' evidence does not support the Commission’s finding that she failed to prove a compensable ,neck injury. We .affirm on direct appeal, and we affirm on cross-appeal.
• | ^Arkansas Code Annotated section 11-9-102(4)(A) (Repl. 2012) defines “compen-sable injury,” and. provides in relevant part: - - ' .
(4)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the Body br accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and .which requires medical services.or 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 or occurrence;
(ii) An injury causing internal or external physical harm to the body and arising out of an in the course of employment if it is not caused by a specific incident or is not identifiable by .time and place of occurrence, if the injury is:
■ (b) ■ A.back or neck injury which is not caused by a: specific incident or which is not identifiable by time and place of occurrence^] ;
A compensable injury must be established by medical evidence' supported by objective findings, which are findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11 — 9— 102(4)(D) and (16)(a)(i). Pursuant to subsection (4)(E) of this statute, the employee has the burden of proving compensability by a preponderance of the evidence. To prove a compensable injury not caused by a specific incident, under subsection (4)(A)(ii), there is an additional requirement that the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11 — 9— 102(4)(E)(ii).
In reviewing a decision of the Commission, we view the evidence in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600, 120 S.W.3d 153 (2003). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support- a conclusion. Id. When the Commission denies benefits because the ^claimant failed to meet her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision'displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). It is thé Commission’s function to weigh the medical evidence and assess the credibility and weight to be afforded any testimony. Werner’s Grill v. Carpenter, 2010 Ark. App. 378, 2010 WL 1838267.
Shawn testified that she began working at Lowe’s in 2008, She stated that her job as an assistant manager required her to work throughout the entire building. Her duties included lifting grills, trash, corn-posters, toilets, and bathtubs, and. she frequently loaded soil into the backs of trucks. According to Shawn, the heaviest lifting she performed by herself was loading a 200-pound- grill, which she lifted using a rack and a cart. Shawn worked •approximately sixty hours per week. She stated that, for the first few years she worked at Lowe’s, she had no significant neck or back problems and had no problem discharging her duties. Shawn also denied having any back problems prior to her employment with Lowe’s.
' Shawn testified that her problems began in 2011, when she was lifting a trash com-poster weighing fifty to seventy pounds by herself. Shawn stated that, as she was pulling the composter off the shelf, she lost her footing, went backward, and twisted. Shawn stated that after the accident she felt mostly neck pain, but also experienced minor back pain. She' testified that she reported an injury to the store manager on the following day, but did not then file a workers’ compensation claim for fear of retaliation and compromising |4her career. She also stated that she hoped she would get better and did not want to quit working.
Shawn testified that she visited her family physician, Dr. Frances Radkey, a couple of days after the accident involving the trash composter. Dr. Radkey noted in her doctor’s, report that Shawn reported neck pain arising from lifting a composter off a shelf. Dr. Radkey diagnosed neck strain, for which she prescribed medication and physical therapy. In a subsequent visit to Dr. Radkey on February 16, 2012, -Shawn complained of neck stiffness and reported that she had been lifting up to sixty pounds at work and working more hours. Shawn testified that her neck and back pain gradually worsened, and on April 6, 2012, Dr. Radkey ordered MRIs of her cervical spine and lumbar spine.
The MRIs were performed on April 16, 2012. The cervical-spine MRI detected early ' degenerative changes- most pronounced at the C5-C6 and C6-C7 levels, but detected no herniations or other significant problems. The lumbar-spine MRI detected a herniated nucleus pulposus at the L5-S1 level, compressing the left nerve root, as well as a bulging disc at the L4-L5 level that flattens the thecal sac. After the MRIs, Dr. Radkey referred Shawn to Dr. Ira Chatman for chronic pain symptoms. ■
Dr. Chatman’s initial report dated April 25, 2012, stated:
The patient complains of pain in lower back and in neck and, shoulders. The patient has been experiencing this pain for a year. She reports onset of pain gradually over time without significant initiating factor. The patient describes her pain as constant with intermittent 'flare ups. The pain is aching, stabbing, sharp, deep, cramping and pressure like. The pain radiates to bilateral upper extremities and bilateral lower extremity.'
| fiShawn continued to treat with Dr. Chat-man for management of her back pain, and he diagnosed lumbar radiculitus and prescribed pain medication, steroid injections, physical . therapy, and medial branch blocks.
According to Shawn’s testimony, her lifting at work gradually aggravated and worsened her problems, and she quit working at Lowe’s in May 2013 and began receiving short-term .disability benefits. She stated that she has not worked since, her separation from Lowe’s, and is currently receiving long-term disability benefits.
' After her employment terminated, Shawn was referred to a neurosurgeon, Dr. Mark Crabtree, for evaluation. On July 12, 2013, Dr. Crabtree reported that Shawn’s neck pain began with an on-the-job injury, that she developed lower-back pain approximately a year ago, and that her symptoms had worsened with time. Dr. Crabtree reported that Shawn complained of constant aching in her lower back, as well as muscle spasms in her lower back, and that working, sitting,, and standing were aggravating factors. However, Dr. Crabtree stated that Shawn was not a surgical candidate. Shawn returned to Dr. Chatman who reported on August 30,2013, that Shawn continued to complain of lower-back and neck pain, that she had been able to be off work recently and avoid heavy lifting, and that her return to employment with heavy physical activity and lifting was unlikely to be tolerated.
In the Commission’s decision, it specifically credited Shawn’s testimony that she had sustained a specific incident occurring in the course of her employment in August 2011 while lifting a trash composter. However, the Commission denied com-pensability' for an accidental neck injury based on its finding that there were no objective medical findings |Bthat Shawn sustained a trauma injury to her neck.The Commission found that Shawn proved a compensable gradual-onset injury to her back supported by objective findings,which consisted of a herniation at L5-S1 and a bulging disc at L4-L5. Crediting Shawn’s testimony that her back problems gradually progressed due to her strenuous activities at Lowe’s, and noting that Shawn had not experienced back problems prior to her working at Lowe’s, the Commission concluded that Shawn’s work-related back injury was the major cause of her need for treatment.
Lowe’s now appeals from the Commission’s decision, arguing that substantial evidence does not support the Commission’s finding that Shawn suffered a com-pensable gradual-onset back injury. Lowe’s first contends that- Shawn did not establish that a work-related injury was the major cause of her need for treatment. Lowe’s asserts that there was a failure of proof on the “major cause” requirement because Shawn did not ever report to a treating physician that she-had injured her back while in the scope of her employment, the lumbar-spine MRI revealed- degenerative spinal issues, and during the course of her employment at Lowe’s Shawn had undergone surgery to a load-bearing extremity (right knee) unrelated to her employment. Lowe’s further contends that inconsistencies in Shawn’s testimony required the Commission to find that Shawn failed to prove a compensable injury.. In this regard, Lowe’s asserts that Shawn could not even identify the year in which her back, symptoms had first developed.
We hold that substantial evidence supports the Commission’s finding that Shawn sustained a compensable gradual-onset injury to her low back. In Cooper Tire & Rubber Co. v. Strickland, 2011 Ark. App. 585, 2011 WL 4585236, we stated that medical evidence on causation is- not |7required in every case, and that causation often comes down to a decision on the credibility of the claimant. As the Commission’s ‘opinion in this case points out, there was no evidence that Shawn had experienced any back problems prior to her employment at Lowe’s, and Shawn testified that her back problems started while working there. Her duties at Lowe’s involved heavy lifting and long work hours, and she testified that minor pain in her back began after lifting a trash composter in'’ 2011, but that she did not initially report her back pain to Dr. Rad-key because she thought it was just sore and. would go away. However, according to Shawn, her lower-back problems wors ened gradually over time, and there was documentation that the pain was exacerbated by working, twisting, turning, and bending. The April 16, 2012 lumbar-spine MRI detected a herniation and a bulging disc in Shawn’s lower back, and shortly thereafter Dr. Chatman reported that Shawn had been experiencing lower-back pain for a year, which was described as stabbing and radiating into her extremities. Shawn’s back pain persisted after that, resulting in multiple treatment regimens and ultimately requiring her to quit work in May 2013. From this evidence, reasonable minds could conclude that Shawn sustained a compensable gradual-onset back injury, arising out of her employment, which was the major cause of her need for treatment.
Although Lowe’s contends that Shawn gave inconsistent testimony as to when her back symptoms began, our review of the record reveals otherwise. Shawn maintained that her back pain began when she lifted the trash composter in 2011, and gradually worsened after that. Lowe’s asserts that at another point in her testimony Shawn identified her back problems as beginning after .she started seeing Dr. Chatman in 2013. However, her testimony was that:
|8My lower back problems developed gradually. I was sore when I injured my neck, and it gradually got worse. I also began to have numbness in my legs.... I cannot recall the exact date it started, but would have to say it began in 2013.
Shawn did not testify that her back problems began in 2013 as suggested by-Lowe’s, but instead stated that' she thought that was when the numbness began. On the record before this court, wé conclude that there was substantial evidence to support an award for a compensa-ble back injury.
In her cross-appeal, Shawn argues that the Commission’s finding that she failed to prove a compensable neck injury was not supported by substantial evidence. In support of her argument, Shawn states that “the spine is one interconnected portion of the central nervous system,” and urges that, given the objective findings of injury to the lumbar spine, “common sense should prevail” and we should reverse the Commission’s finding that she failed to prove a compensable neck injury.
We do not agree with Shawn’s argument on cross-appeal. The Commission credited Shawn’s testimony that a specific lifting incident occurred at work, but denied com-pensability for a neck injury due to a lack of objective findings to support ■ such, an injury. The cervical MRI detected only early degenerative neck changes, and contained no findings supporting a.neck injury attributable, to. a traumatic event at work. As found by the Commission, there was a failure of proof of objective medical findings to support a compensable neck injury, and we therefore hold that the Commission’s opinion displays a substantial basis for the denial of that relief.
Affirmed on direct appeal; affirmed on crqss-appeal. .,
Harrison and Vaught, :JJ., agree.
. Shawn stated that she was unsure about the exact date, but she thought the injury had occurred on August 23, 2011. The subsequent doctor’s report contains a stamp mark indicating a date of April 25, 2011, but it appears by context that the date of the report may have áctually been August 25, 2011. | [
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RITA W. GRUBER, Judge
|! This appeal arises from a default judgment entered against Teresa Bloodman in a foreclosure case. She appeals from the circuit court’s denial of her motion to set aside the .default judgment. All of the issues on appeal concern- service, which was ultimately effected by a warning order. After conducting a de novo review, we affirm the.circuit court’s denial of Ms. Bloodman’s motion to set aside its default judgment.
On October 2, 2009, Fannie Mae executed a Special Warranty Deed conveying the subject property located at 5528 Lexington Avenue in Hurricane Lake Estates in Ben ton to Ms. Bloodman^ That same day, Ms. Bloodman obtained a mortgage from One Bank and | ¿Trust by executing a Deed of Trust in favor of One Bank. One Bank later assigned the mortgage to appellee, Bank .of America, N.A., pursuant to an Assignment Deed of Trust. Although the Special Warranty Deed contained the correct legal description, both the Deed of Trust and the Assignment Deed of Trust contained an error: Hurricane was misspelled as “Humean.”
Ms. Bloodman defaulted on her . mortgage in January 2011 and made no further payments. Bank of America accelerated the loan and on July 15, 2014, filed a complaint for reformation and foreclosure; for reformation of the legal description to spell Hurricane correctly and for judgment in personafe. against Ms. Bloodman and in rem against the subject real property.
Bank of America attempted to serve Ms. Bloodman by several methods. First, a process server attempted personal service at the address of the subject property in Hurricane Lake Estates. The process server testified that, although the “standard” number of attempts is three, she made five attempts: Saturday,. July 19, 2014, at 10:00 a.m.; Thursday, July 24, 2014, at 9:00 p.m.; Monday, July 28, 2014, at 8:00 a;m.; Tuesday, July 29, 2014', at 8:00 p.m.; and Saturday, August 2, 2014, at 4:00 p.m. Counsel for Bank of America also attempted service by certified mail to the post office box in Maumelle listed by Ms. Bloodman, a licensed attorney, bn her pleadings and with the clerk of the Arkansas Supreme Court. The mailing was returned “UNCLAIMED.”
When none of these attempts proved successful, counsel for Bank of America filed an affidavit for warning order, stating that they had “made diligent inquiry” and that Ms. Bloodman was no longer a resident at her last known address of 5528 Lexington Avenue in |.Renton. They stated that five unsuccessful attempts had been made to serve Ms. Bloodman at 5528 Lexington Avenue, Benton, AR 72019; that service had" been attempted by certified mail to the Maumelle post office box; and that “Defendants’ present addresses are unknown.” Proof of service from the five attempts' in the form of "certified mail manifests and returned mail were' attached as exhibits. The court entered a warning order oh September 19, 2014, setting forth the correct legal description of the property (without the misspelled word “Hürri-can”), warning Teresa Bloodman, current spouse of Teresa Bloodman, and occupants of 5528 Lexington Avenue to appear and answer Bank of America’s complaint within thirty days of publication or face entry of default judgment. The warning order was published in the Saline Courier on September 26, 2014, and October 3, 2014, and mailed to Ms. Bloodman via certified mail at the Maumelle post office box, the subject property, and a prior residential address in Maumelle that Bank of America had located' in its files. The mailings to the first two addresses were returned “UNCLAIMED,” and the mailing to the prior Maumelle address was returned “REFUSED.” On December 29, 2014, the circuit court entered a default judgment in the case.
On January 12,' 2015, Ms. Bloodman, appearing’pro se, filed a motion to set aside the default judgment. She alleged that January 8,- 2015, was the first time that she had been apprised of the foreclosure action, when a copy of the order was mailed to her post office box — the post office box to which all previous mailings had been sent. She contended that the warning order was facially defective because Hurricane was properly spelled in the order and thus the order did not set forth the “correct”.legal description; that she was not personally or properly constructively served as required by Rule 4(f) of the Arkansas Rules 14of Civil Procedure because the affidavit for the warning order did not state that Ms. Bloodman’s “whereabouts” were unknown;, and .various other alleged deficiencies not at issue on appeal.
After a hearing, the circuit court denied Ms. Bloodman’s motion to set aside the default judgment, finding that Bank of America demonstrated that it had made sufficient, diligent inquiry into her whereabouts in accordance with Ark. R. Civ. P. 4(f)(1); that the affidavit for warning order was sufficient and in accordance with Rule 4(f)(1); that the warning’ order provided the correct legal description as set forth in the deed vesting title in Ms. Bloodman and that it was sufficient to give notice of the property that was the subject of the lawsuit to all parties; that the legal description contained in the Deed of Trust and Assignment of Deed of Trust contained a scrivener’s error; and that the warning order and service thereof were sufficient and in accord with Rule 4 of the Arkansas Rules of Civil Procedure. Finally, the court stated that, in order tó set aside a default judgment, the party seeking -to have it set aside must establish grounds for setting aside the judgment and demonstrate a meritorious defense. The court found that Ms. Bloodman had failed to introduce testimony regarding a meritorious defense.
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. Rule 55(c) sets forth the ■ circumstances pursuant to which;a court may set aside a default judgment.
(c)’Setting Aside Default Judgments. The court may, upon motion, set aside a default judgment.previously entered for the following reasons: (1) mistake, inadvertence, surprise,,or excusable neglect; (2) the judgment is void;.. (3) fraud . (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; vor (4) any. other reason justifying relief from the operation .of the [.-judgment. The party seeking to have the judgment set aside must demonstrate, a meritori- . ous defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Ark. R.: Civ. P. 55(c) (2015).
Our standard of review for. an order denying a motion to set aside a default judgment depends on the . grounds • upon which the appellant claims the default judgment should be set aside, In cases in which the appellant claims that the default judgment is void, our review is de novo, and we give no deference to the circuit court’s ruling. Steward v. Kuettel, 2014 Ark. 499, at 7, 450 S.W.3d 672, 676. In all other cases, we review an order denying a motion to set aside default for abuse of discretion. Id.
< Ms. Bloodman’s first two arguments concern allegations of insufficient service of process. Default judgments are void ab initio due to- defective process regardless of whether the defendant had actual knowledge of the pending lawsuit; thus; we review these arguments de novo. See Nucor Corp. v. Kilman, 358 Ark. 107, 119, 186 S.W.3d 720, 727 (2004). Her first argument is that the warning order was improper because it contained “an incor rect legal description of the subject property.” Rule 4(f) states that the warning order shall include, “if applicable, a description of the,property or other res to be affected by the judgment.”
In this case, the warning order- did include a description of the property to be affected by the' judgment. The property to be affected by the foreclosure suit was in fact in “Hurricane Lake Estates,” as stated in the'warning order, and not in “Hurrican Lake Estates.” The warning ordér contained the correct legal description that was provided in the Special Warranty Deed conveying the property to Ms. Bloodman rather than the incorrect legal description provided in the' Deed of Trust and Assignment of Deed of Trust. We simply ^cannot agree with Msi Bloodman that Bank of America should have published the incorrect property description, and she cites no relevant legal authority for such a proposition.
For her second point on appeal, Ms. Bloodman contends that the circuit court 'erred in' failing to set aside the default judgment because Bank of America failed to make a diligent'inquiry that her whereabouts were unknown. Rule 4(f)(1) authorizes a warning order to be- issued if it appears from the affidavit for warning order that “after diligent inquiry, the identity or whereabouts of a defendant remains unknown.” Ark. R. Civ. P. 4(f)(1) (2015). Ms. Bloodman argues that Bank of America failed to specifically use the word “whereabouts” in its affidavit, causing the affidavit and the court’s issuance of the warning order to be in error. The cases she relies on to support her proposition simply- do not. See Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992) (holding requisite diligent- inquiry, not made where appellant did not conclude in his affidavit that “the location” of defendant was unknown); and Jackson v. Jackson, 81 Ark.App, 249, 100 S.W.3d 92 (2003) (reversing where warning order was issued without either personal service having been unsuccessfully attempted first or an affidavit having been filed).
■ Whereabouts is defined- as “[t]he general locale where a person or thing is.” Black’s Law Dictionary Í626 (8th ed. 2004). It logically includes the location of a person or his address. Bank of America’s affidavit stated that it had made “diligent inquiry” and that Ms. Bloodman and “Occupants” of the subject property were “no longer resident at their last known address of 5528 Lexington Avenue, Benton[.]” The affidavit then stated that five personal-service attempts had been made at that áddress and that the'property had continually been unoccupied. The affidavit also stated that service by certified mail had been attempted 17to the post office box in Maumelle. .Finally, the affidavit stated that “the Defendants’ present addresses are unknown.” We agree with the circuit court that this affidavit satisfies the requirements of Rule 4(f)(1) and that the absence of the word “whereabouts” in the affidavit did not invalidate the warning order.
Ms. Bloodman also argues that Bank of America did not conduct a diligent inquiry because it did not contact the Arkansas Supreme Court-Clerk for her information or take advantage of the federal and state case-management system to determine her whereabouts. Without deciding whether a party is required to “chase down” a defendant who happens to be an attorney at the various courts in which she might be practicing, we note- that the contact -information used by Ms. Bloodman on her brief to- this court and the address listed with the Clerk of our supreme-court is the exact post-office-box address used by Bank of America to attempt service and where she claims to have first been ap prised of the foreclosure suit by receiving a copy of the default judgment: ■ Ms. Bloodman offered no evidence of any other address, location, or post office box that should have been used by Bank of America. We agree with the circuit court that Bank of America demonstrated that it conducted a sufficient, diligent inquiry into Ms. Bloodmaris whereabouts in accordance with Rule 4(f)(1).
Finally, Ms. Bloodman argues that the service was defective and was acquired by deliberate misrepresentation of material fact and fraud because Bank of America did not determine her whereabouts prior to filing the affidavit for warning order. Thus, She argues, the default judgment should be set aside under Rule 55(c)(8) or (4) for fraud or misrepresentation or for any other reason justifying relief. We review the court’s refusal to |8set side the default judgment under these provisions for abuse of discretion. For the reasons already set forth above regarding diligent inquiry and “whereabouts,” we hold that the circuit court did not abuse its discretion in denying the request to set aside 'the default judgment for fraud or any other reason. ' Moreover, Ms. Bloodman failed to present a meritorious defense to the action.
For these reasons, we affirm the circuit court’s- denial of Ms. Bloodman’s motion.
Affirmed.
Kinard and Glover, JJ., agree.
. The legal description contained in the deed provides as follows:
Lot 6, Hurricane Lake Estates, Phase IV, an addition to the City of Benton, Saline County, Arkansas, together with ingress and egress easements as set forth on plat filed as Document No. 04 97943; correction plat filed as Document No. 04 103235, records of Saline County, Arkansas.
Commonly known as: 5528 Lexington Avenue, Benton, ,AR 72019. | [
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RHONDA K. WOOD,. Associate Justice
h David Felty received a life sentence in prison without parole after a jury convicted him of first-degree felony murder. Felty’s counsel on appeal has filed a no-merit brief arid a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Ark. Sup. Ct. R. 4-3(k) (2015). The brief asserts that there are no nonfrivolous arguments to be made on appeal. No pro se points have been filed. We hold that the brief complies with our rules and Anders. We affirm the conviction and grant counsel’s motion to withdraw.
This case- started after the police responded to a 911 call'from the El Rancho Motel in Hot Springs and found the victim, badly beateri, inside one of the rooms. According, to the victim, his assailant .had used a baseball bat and was wearing white shirt. The police quickly apprehended Felty at the scene; at the time, he was wearing a white shirt. The victirn would later die of a heart-attack as a result of the injuries sustained in the beating. The autopsy concluded that the cause of death was homicide. ■
| ;,A jury trial was' held. Eyewitnesses testified that Felty and two accomplices entered the victim’s motel room. O’né 'accomplice stated that Felty owed her money. Inside the motel room, Felty beat'the victim "with a baseball bat while the accomplices rifled through the victim’s personal effects. The police never recovered any money from the -motel room, even though the victim had been carrying over a thousand dollars cash.
The jury convicted Felty of first-degree felony murder. Because Felty was a habitual offender, he received a sentence of life in prison without parole under Ark. Code Ann. § 5-4-501(d) (Repl. 2013). During'‘the trial, the only adverse rulings against Felty concerned the motion for a directed verdict, the renewed motion -for a directed verdict, and an objection to Felty’, s habitual-offender status. In compliance with our rules, Felty’s attorney has abstracted these rulings and explained why none provide a meritorious ground for reversal. See Ark. Sup. ,Ct. R, 4 — 3(k)(l). We agree that there are no other nonfrivo-lous arguments for an appeal.
The ’ directed-verdict -motions were challenges to the sufficiency of the evidence; we will affirm when substantial evidence supports the verdict. See Flowers v. State, 373 Ark. 119, 282 S.W.3d 790 (2008). The State asserted that Felty committed felony murder under the following .theory: ..in the course of committing a felony (robbery), either Felty or an accomplice caused the victim’s death under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-102(a)(l). At trial, eyewitnesses 1 -¡confirmed that Felty and two accomplices entered the victim’s motel room and beat the victim, causing his death. And even though the victim had a large sum of money, the police recovered none from his room. The no-merit brief has adequately summarized this testimony. Counsel has explained that all elements of the crime were satisfied and that the denial of the directed-verdict motions is not a meritorious ground for reversal.
Next, Felty’s attorney argued at trial that Felty’s two prior convictions for rape should count as only one conviction. Under the statute, a defendant is subject to habitual offender status if he commits “two (2) or more felonies involving violence.” Ark. Code Ann. § 5-4-501(d). The statute further defines rape as a “felony involving violence.”. Ark. Code Ann. § 5-4-501(d)(2)(A)(v). The State presented a judgment and commitment order that reflected Felty’s two separate convictions for rape. Each conviction had its own docket number. The circuit court ruled that each conviction was a separate felony. Counsel has adequately explained that this ruling is not a meritorious ground for reversal. • ■
Because these adverse rulings do not provide meritorious grounds for reversal and because there are no other nonfrivo-lous arguments for an appeal, we agree with counsel that an appeal would be wholly frivolous. Additionally, as required by Ark. Sup. Ct. R. 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed; motion to withdraw granted.
. "A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting -apprehension immediately after committing a . felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person,” Ark. Code Ann. §. 5-12-102(a). | [
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PER CURIAM
| petitioner Carl Davis, Jr., filed a petition for declaratory judgment and writ of mandamus in the Lincoln County Circuit Court in which he sought a declaratory judgment concerning the calculation of his parole eligibility date and a writ of mandamus directing a number of state officers and employees to recalculate it. On April 17, 2016, the circuit court entered an order that denied the petition, and, on September 13, 2015, Davis filed his notice of appeal. When the record was tendered to this court, our clerk declined to lodge it because the notice of appeal was not timely. Davis filed' the instant motion requesting permission tor proceed with an appeal through rule on clerk or by belated appeal. We deny the motion.
Under Arkansas Rule- of Appellate Procedure—Civil 4(a) (2015), Davis was required to file his notice of appeal within thirty days of the date of the entry of the order to be appealed unless an extension of time was granted in accord with the rule. Our clerk was 12not mistaken in concluding that the notice of appeal was not timely, and Davis does not contend that he filed the notice of appeal within the required time.
Instead, Davis asserts that, because the circuit court failed to promptly mail the order to him, he was not properly notified of the April 17, 2015 order and he should be excused for failing to timely file his notice of appeal. He alleges that he did not receive a copy of the order until September 2, 2015; that the copy of the order was enclosed with a letter to him from the clerk dated August 31, 2015; and that the clerk’s letter indicated the judge’s office had advised the clerk that the order had been mailed to' Davis from that office. The record includes the clerk’s letter to Davis as he described it, and the clerk’s letter appears to have been sent in response to Davis’s August 31, 2015 motion requesting a status update in the matter.
Davis cites Arkansas Supreme Court Rule 2-2 (2015) for rule on clerk, but, if the notice of appeal was filed late, the motion is properly treated as one for belated appeal. See Johnson v. State, 2015 Ark. 195, 2015 WL 3548758 (per cu-riam). Under Arkansas Rule of Appellate Procedure—Criminal 2(e), this court may act upon and decide a case in which the notice of appeal was not filed in the time prescribed when a good reason for the omission is shown. See Bean v. State, 2014 Ark. 440, 2014 WL 5410621 (per cu-riam). This proceeding was a civil matter, but this court treats declaratory-judgment proceedings as applications for postconviction relief in those instances where a petitioner seeks relief from the conditions of incarceration. Cridge v. Hobbs, 2014 Ark. 153 (per curiam).
Davis cites Berks v. State, 2015 Ark. 234, 463 S.W.3d 289 (per curiam) in support of the proposition that he has shown good cause for the delay in filing the notice of appeal. | ¡¡But, Berks concerned a situation in which the circuit court was obligated to provide notice of the denial of a petition under Arkansas Rule of Criminal Procedure 37.1.
Arkansas Rule of Criminal Procedure 37.3(d) (2015) contains a mandatory requirement that the circuit court provide prompt notice to the petitioner of an order entered on a Rule 37.1 petition. Nelson v. State, 2013 Ark. 316, 2013 WL 4774472 (per curiam). This court has recognized good cause to excuse a petitioner’s failure to timely file a notice of appeal in cases where the circuit court has failed to abide by Rule 37.3(d). Green v. State, 2015 Ark. 198, 2015 WL 3548398 (per curiam). Under circumstances such as those in the instant proceedings, that is,-where there was no absolute duty imposed on a judge or a clerk to notify the petitioner that a petition for postconviction relief had been denied, a failure to provide timely notice of the denial does not in itself constitute good cause for the failure to file a timely notice of appeal. Barber v. State, 2015 Ark. 267, 2015 WL 3542161 (per curiam).
Although he filed his notice of appeal 149 days after.entry of the April 17, 2015 order, Davis failed to file a motion seeking an extension of time under Arkansas Rule of Appellate Procedure—Civil 4(b)(3) within 180 days of entry of the order, and he offers no reason why he did not seek an extension under Rule 4(b)(3). Our law imposes a duty on lawyers and litigants to exercise reasonable diligence to keep up with the status of their cases, and pro se litigants are held to the same standard as licensed attorneys. Id. Davis contends that he. was' not at fault, and, as noted, he filed a motion seeking the status of the case. Yet, Davis became aware of the April 17, 2015 order well within the period of time for filing a motion for an extension of time in which to file his notice of appeal under'Rule 4.
|4If Davis had exercised diligence in checking on the status of the case and had otherwise met the requirements of Rule 4, the circuit court would have had an absolute obligation to grant his motion for extension of time. Arkco Corp. v. Askew, 360 Ark. 222, 200 S.W.3d 444 (2004). Davis has not therefore provided an excuse for his failure to file a timely notice of appeal that would constitute good cause for the omission.
' When a petitioner fails to perfect an appeal in accordance with the prevailing rules of procedure, the burden .is ■ on the petitioner, even if he is proceeding pro se, to establish good cause for failure to comply with the procedural rules. Early v. Hobbs, 2015 Ark. 313, 467 S.W.3d 150 (per curiam). The duty to conform to procedural rules applies even when the petitioner proceeds pro se, as all litigants must bear the responsibility for conforming to the rules of procedure or demonstrating good cause for not doing so. ■ Miller v. State, 2013 Ark.. 182, 2013 WL .1776515 (per curiam). Davis failed to meet his burden to establish good cause for his failure to comply with our procedural rules.
Motion denied. | [
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' RAYMOND R. ABRAMSON, Judge
11 Joseph Dodd appeals from the June 16, 2015 Pulaski County Circuit Court order terminating his parental rights to his daughter, S.D. (DOB: 7-31-13). On appeal, Dodd argues that insufficient evidence existed to support termination of his rights and that the trial court erred in finding that termination was in the child’s best interest. A review of the record does not show that the circuit court’s decision was clearly erroneous. As such, we affirm.
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) (Supp.2015). 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 |2the 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, the Arkansas Department of Human Services (DHS) must prove at least one statutory ground for termination by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b)(3)(B). It is well settled that these cases are reviewed de novo on the record, but we do not reverse a termination order unless the circuit court’s findings of dear and convincing evidence were clearly erroneous. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). 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.
On December 1, 2013, DHS received a call from the hotline stating that -there had been a report for “Abuse Threat of Harm.” The child’s mother, Brandi Galley, had been admitted to UAMS for having suicidal and homicidal ideations. The child’s father, appellant Joseph Dodd, had tested’ positive for THC, methamphetamine, and benzodiazepine. On December 4, 2013, DHS petitioned for ex parte emergency-custody and dependency-neglect, which the court granted. On December 11,2013, the parties stipulated to probable cause. Dodd was allowed to visit S.D. but was also ordered to immediately complete a psychological evaluation, and to submit to random drug screens. DHS was ordered to make a referral for DNA testing.
On February 19, 2014, the court adjudicated S.D. dependent-neglected due to neglect ánd parental unfitness. On February 27, 2014, Dodd was ordered to follow the | ¡¡recommendations of the psychological evaluation, participate in individual and/or family counseling, take medication as prescribed, refrain from the use of illegal drugs, submit to a drug-and-alcohol .assessment, submit to drug screens, attend AA/NA meetings at least twice á week, complete parenting classes, obtain safe and stable housing, maintain stable employment and income, and obtain a court order of paternity.
At the hearings on both May 22, 2014 and on September 11, 2014, the court found that Dodd had substantially complied by submitting to DNA testing, clean drug testing, drug treatment, stable housing, income, and visitation. The court noted the only thing he was lacking was the AA/NA sign-in sheets. At the permanency-planning hearing, the trial court found that Dodd had complied with the case plan and court orders, and the court authorized a plan to place custody of the juvenile with Dodd- since he had been, complying and making significant measurable progress. Dodd’s visitation increased while the court ordered that the mother have no visitation with the juvenile pending the termination of her parental rights adjudication hearing.
On December 22, 2014, Dodd was awarded temporary custody of S.D. On January 20, 2015, "á petition for termination of parental rights was filed'against Brándi Galley only. On'March 9, 2015, DHS filed a Aotion for emergency change of custody after Dodd' had allowed Galley to visit his home and 'spend the night with S.D. present, and Dodd had also tested positive for marijuana.' The court granted the motion and held a probable-cause hearing on March 12, 2015. The court found that probable cause existed because Dodd had tested | .¡.positive for. marijuana, and he admitted that he had allowed Galley to spend the night despite the fact he knew that she had been ordered to have no contact with the minor .child'. -
Finding that’ Dodd was not credible and that he had continued using marijuana on a regular basis, the court changed the goal to termination in his case. DHS filed an amended petition for termination of parental rights alleging multiple grounds. A termination hearing was held on May 28, 2015, and Dodd testified that he had learned his lesson and would not speak to Galley again.. On June 16, 2015, the circuit court entered an order termmating Dodd’s parental rights to S.D. on the basis of subsequent factors and aggravated circumstances,.' specifically due to his continued drug use and contact with Galley, which was in direct violation of a court order. Dodd timely filed a notice of appeal.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Albright v. Ark. Dep’t of Human Sews., 97 Ark. App. 277, 248 S.W.3d 498-(2007). However, courts are not to enforce parental rights to the detriment- or destruction of the health and well-being'of a child. Id. An order terminating parental rights must be based upon a finding by clear and convincing evidence that (1) termination of parental rights is in the best interest of the children, considering the likelihood that the children will be adopted if the parents’ rights are terminated and the potential harm caused by returning, the children to the parents’ custody, and (2) at least one ground for termination exists. See Ark.Code Ann. § 9-27-341(b)(3)(A) and (B).
We review termination-of-parental-rights cases de novo. Lee v. Ark. Dep’t of Human■ Servs., 102 Ark,App. 337, 285 S.W.3d 277 (2008). However, we will not reverse the circuit | Rcourt’s finding of clear and convincing evidence unless that finding is clearly erroneous. See Albright, supra, A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, considering the entire evidence,.is left with a definite and firm conviction that a mistake has been made. Id. When determining the clearly erroneous question, the appellate court gives due deference to the opportunity of the trial court to judge,the credibility of witnesses. Id.
Dodd challenges the court’s findings and argues that the evidence does not support any statutory ground for termination. The juvenile code provides nine different grounds that warrant termination. See Ark.Code Ann. § 9-27-341(b)(3)(B). But only one ground is needed to terminate parental rights. Albright, supra.
Here, the circuit court terminated Dodd!s parental- rights under Ark.Code Ann. § 9-27-341(b)(3)(B)(vii), which provides as a ground for termination .that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate the return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent. . . ..
Dodd’s failure to follow the circuit court’s orders and his continued drug use were the subsequent factors. His failure to follow the orders designed to achieve S.D.’s permanent placement demonstrated an incapacity or indifference to remedy the situation. These failures, |ficoupled with his continued illegal drug use, are sufficient to support a subsequent-factors finding. Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, at 11-12, 422 S.W.3d 130,137-38.
The circuit court also terminated Dodd’s rights pursuant to the aggravated-circumstances ground. For termination on that ground, the court must find, that (ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
,(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means: (i) A juvenile has been abandoned, chronically abused, subjected to extreme. or repeated cruelty, sexually abused, or a determination has béen or is made by a judge that there is little likelihood that services to the family will result in successful reunification;
Ark.Code Ann. § 9-27-341(b)(3).(B)(ix)(a)(3)(A),(B)(i),
In support of his argument for reversal on this ground, ■ Dodd relies on the failure of DHS to provide appropriate services. However, based on the record before us, Dodd, never challenged the appropriateness of any DHS-offered reu nification service. Also, he never argued below that there were particular reunification services that DHS should have provided. As such, Dodd failed to preserve this argument. We have long held that we will not consider arguments raised for the first time on appeal. See Ark Dep’t of Health & Human Seros, v. Jones, 97 Ark.App. 267, 248 S.W.8d 507 (2007).
Dodd further challenges the circuit court’s -finding that the termination of his parental rights was in S.D.’s best interest. The two factors to consider in determining best interest are the-likelihood of adoption and potential harm caused by returning the child to the custody 17of the parent. Ark.Code Ann. § 9—27—341(b)(3)(A). Dodd does not challenge the trial court’s finding that S.D. is adoptable. He does, however, argue that the court erred in finding that his child would be subject to potential harm if returned to his custody. Dodd contends that there was no evidence presented that he had ever harmed S.D. nor was there any threat that he would do so in the future.
In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Ark Dep’t. of Human Seros., 2010 Ark. App. 798, 378 S.W.3d 290. The potential-harm analysis must be conducted in broad terms, including the. harm the child suffers from the lack of stability in a permanent home. See Lunon v. Ark Dep’t of Human Seros., 2010 Ark. App. 647, 2010 WL 3783694.
The circuit court found that Dodd’s con-tinuéd illegal drug usé and the fact that he allowed Galley to. visit .S.D., even though such visjts had been prohibited by court order, were enough to show potential harm. While the court .noted that Dodd had made measurable improvements, he also blatantly disregarded and violated the circuit court’s orders. We cannot say the trial court’s findings with regard to potential harm were clearly erroneous'. Accordingly, we affirm.- ■= . -
Affirmed.
Gladwin, C.J., and Brown,1 J., agree. | [
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PER CURIAM
1 ¶Petitioner Darrell Napoleon Dennis filed a series of motions in the Pulaski County Circuit Court that related to or challenged the judgments in two criminal cases, 60CR-09-2465 and 60CR-10-1848. The two judgments reflected Dennis’s convictions by plea to the court on multiple charges, including drug and, in 60CR-09-2465, firearms charges, and the imposition of concurrent aggregate sentences of 720 months’ imprisonment. The circuit Rcourt denied the motions as concerned 60CR-10-1848 by an order entered June 23, 2014. On September ■ 23, 2014, • Dennis filed in both cases a notice of appeal that referenced the June 23, 2014 order. When the record was tendered to this court, our clerk declined to lodge it because the notice of appeal was not timely as to any order contained in the record.
On September 11, 2015, Dennis filed in this court the first of three motions for belated appeal or rule on clerk and for appointment of counsel. He asks this court to allow him to proceed with an appeal of the June 23,2014 order. He also filed motions in which he requested use of the record on appeal so that he might make specific references to the record in order to supplement the motions' for belated appeal, permission to supplement the record, and, once again, appointment of counsel.
Under Arkansas . Rule of Appellate Procedure—Criminal. 2(a) (2014), Dennis was required to file a notice of appeal within thirty days of the date of the entry of the order denying postconviction . relief. Because the notice of appeal was not timely filed, the motions are properly treated as motions for belated appeal under Arkansas Rule of Appellate Procedure—Criminal 2(e). See Johnson v. State, 2015 Ark. 195, 2015 WL 3548758 (per curiam). We deny the motions for belated appeal as to that part concerning Dennis’s request to proceed with an appeal, and the parts of the motions that concern his request for counsel* are therefore moot. The' motions for use of the record and to supplement the record are also moot.'
Dennis filed the first postconviction motion referenced in the June 23, 2014 order on November 19, 2013. The motion sought relief under both Arkansas Rule of Criminal Procedure 26.1 (2015) and Criminal Procedure Rule.37.1. Sentencing in the two cases was on October 1, 2013, and the judgment in 60CR-10-1848 was entered on October 9, 2013. lsThe judgment in 60CR-09-2465 was entered on October 8, 2013. Dennis was required to act under Rule 26.1. before sentencing. Webb v. State, 365 Ark. 22, 223 S.W.3d 796 (2006). In contrast, the motion was timely for both 60CR-09-2465 and 60CR-10-1848, as a petition for postconviction relief under Rule 37.1 because it was filed within ninety days of entry of the judgment. Ark. R.Crim. P. 37.2 (2014). Although the order referenced three other motions that Dennis filed, this November 19, 2013 motion’s disposition is the one that Dennis' would appeal.
In the three motions for belated appeal, Dennis contends that he had unsuccessfully sought .to withdraw his plea under Rule 26.1 before his sentencing and that the circuit court failed to promptly provide him with notice of entry of the June 23, 2014 order. In his third motion for belated appeal, in support of his claim that he did not receive notice of the order until July 21, 2014. Dennis attaches a copy of an envelope from the judge in the case that was postmarked on July 17, 2014, and a statement from an Arkansas Department of | ¿Correction officer confirming that “legal mail” from the' circuit court dated June 18, 2014, was received' by the prison' and delivered to Dennis on July 2Í, 2014. Dennis further contends that his Rule 37.1 petition was meritorious, reasserting the arguments from his November 19, 2013 motion at length, and he attaches a copy’of a transcript of a plea hearing not contained in the record to two of his motions and an affidavit averring that he accepted a plea agreement and would not have entered his plea if he had known the prosecutor would breach that agreement by recommending a sentence.
A .petitioner has the right to appeal a ruling on a petition for postconviction relief. Bean v. State, 2014 Ark. 440, 2014 WL 5410621 (per curiam). If a petitioner fails to file a timely notice of appeal, however, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Id. Regardless of the merits of Dennis’s Rule 37.1 petition or any claim he may have raised in it, he has not demonstrated good cause for his failure to file a timely notice of appeal.
The notice of appeal was filed on September 23, 2014, ninety-two days after the June 23, 2014 order was entered. Under Arkansas Rule of Criminal Procedure 37.3(d) (2015), the circuit court must provide prompt notice to the .petitioner of an order entered on a Rule 37.1 petition, and that requirement is mandatory. Nelson v. State, 2013 Ark. 316, 2013 WL 4774472 (per curiam). This court has recognized good cause to excuse a petitioner’s failure to timely file a notice of appeal in cases where the circuit court has failed to abide by Rule 37.3(d), and, where the record is silent and the respondent State is unable to provide an affidavit or bother proof that the order was promptly mailed, this court assumes that the petitioner was not properly notified. Green v. State, 2015 Ark. 198, 2015 WL 3548398 (per curiam). In those cases where the delay in notice was sufficient to prevent the petitioner from timely filing his notice of appeal, good cause has been shown.
Dennis argues that, because the circuit court failed to promptly mail the order to him, ‘he should be excused for failing to timely file his motion for belated appeal. While the circuit court’s failure to comply with Rule 37.3(d) may provide Dennis with an excuse for á portion of the delay in filing the notice of appeal, he fails to provide any reason for the additional delay éxceeding any caused by the circuit court’s noncompliance with Rule 37.3(d). Dennis contends that the circuit court failed to mail the order until July 17, 2014, and he received a copy of the June 23, 2014 order on July 21, 2014. The circuit court’s twenty-four-day delay in mailing the order, without more,. does not establish good cause for Dennis’s filing his notice-of appeal sixty-two days after the deadline had expired and more than thirty days after he had received a copy of the order. See id.
When a petitioner fails to perfect an appeal in accordance with the prevailing rules of procedure, the. burden is on the petitioner, even, if he is proceeding pro se, to establish good cause for failure to comply with the procedural rules. Early v. Hobbs, 2015 Ark. 313, 467 S.W.3d 150 (per curiam). The duty to conform to. procedural rules applies even when the petitioner proceeds pro se, as all litigants must bear the responsibility for conforming to the rules of procedure or demonstrating good cause for not doing so. Miller v. State, 2013 Ark. 182, 2013 WL 1776515 (per curiam). Dennis failed to meet , his burden to establish good cause for .his failure to comply, with our procedural rules.
| (¡Motions for belated appeal/rule on clerk treated as motions for belated appeal and denied in part and moot in part; motions for use of records and to supplement moot.
. The June 23, 2014 order referenced'three other motions filed on December 10; 2014, January 23, 2014, and February 26, 2014. The January 23, 2014 motion sought to compel the circuit clerk to provide certain documents. Those issues are not discussed in the June 23, 2014 order or the motions for belated appeal. The February 26, 2014 motion appears to be a duplicate filing of the motion filed on November 19, 2013. The record on appeal does not contain a motion filed on December 10, 2014, but it does contain one filed on December 10, 2013. The December 10, 2013 motion sought reconsideration of a November 12, 2013 order disposing of previous petitions Dennis had filed in the two cases that are not in the record. The record includes an order entered January 8, 2014, that disposes of the December 10, 2013 motion, but Dennis does not seek to proceed with an appeal of the January 8, 2014 order and the June 23, 2014 order did not appear to address issues raised' in the December 10, 2013 motion. The motions for belated appeal were hied in this court .Outside the time limitation contained in Arkansas Rule of Appellate Procedure—Criminal 2(e) (2014) as to the January 8, 2014 odder, A motion for belated' appeal filed more than eighteen months after the date of entry of the judgment is Subject to dismissal. Gunderman v. State, 2014 Ark. 354, 2014 WL 4373894.
. As noted, the two -judgments reflect that Dennis entered a plea directly to the court and not that he entered a negotiated plea. | [
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BRANDON J. HARRISON, Judge
11 Gerald Stow appeals from an order of the Baxter County Circuit Court denying his request to terminate his obligation to report as a sex offender. He argues that (1) the circuit court erroneously interpreted Arkansas Code Annotated sections 12-12-906 and 12-12-919 and (2) the circuit court’s conclusion that Stow posed a threat to the safety of others was clearly erroneous. We affirm.
Gerald Stow pled guilty to’aggravated incest'of his daughter in 1989. Under Colorado law, Stew’s aggravated-incest conviction required him to register as a sex offender for the remainder of his life. In April 2012, Stow was arrested for failing to register as a sex offender in Arkansas. After registering as a sex offender in Arkansas, Stow petitioned the circuit court to relieve him from his sex-offender reporting requirements.,
laThe circuit court, after holding a hearing and receiving briefs, entered a written order dismissing Stew’s petition in March 2015. The circuit court found that Ark. Code Ann. § 12-12-906(a)(2)(B)(l) requires Stow to register as a sex offender in Arkansas “for the remainder of his natural life, because of his obligation to do so in Colorado.” Therefore, the court concluded, Stow was not eligible to apply to have his obligation to- register terminated; The second, alternative basis upon which- the circuit court decided this case was that Stow failed to prove that he was not likely to pose a safety threat to others under Ark.Code Ann. § 12-12-919. The court’s factually based conclusion primarily rested on the “Risk Assessment and Offender Profile Report” that the Arkansas Department of Correction prepared and which the State introduced as evidence at the hearing.
We expressly decline to address the issue of first impression presented in this case because it is not necessary to our decision. The issue of first impression is whether someone who must register as a sex offender for life in the state he or she was convicted in must also perform a lifetime of registration in Arkansas. Even assuming Stow was eligible to apply to terminate his registration obligation in Arkansas, the circuit court did not err when it denied his petition. The circuit court found that Stow failed to prove that he was not likely to pose a safety threat to others, and this finding' is hot' clearly erroneous.
Arkansas Code Annotated section 12-12 — 919(b)(l)(A)(i) states,
Any other sex offender [meaning a person not required to report for a lifetime] required to register under this subchap-ter may apply for an order terminating the obligation to register to the sentencing court fifteen (15). years after release from incarceration or other institution or fifteen (15) years after having been placed on probation or any other form of community supervision by the court.
3Section 12-12-919(b)(2)(B) provides that “[t]he court shall grant an order terminating the obligation to register upon proof by a preponderance of. the evidence that .,. [t]he applicant is not likely to pose a threat to the safetyof others.” We review the circuit court’s findings on a section 12 — 12—919(b) (2)(B) petition under a clearly erroneous standard of review. See State v. Khabeer, 2014 Ark. 107, 2014 WL 1096247. 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 was made. Id.
Stow called several witnesses in support of his case that he was not likely to pose a threat to others’ safety. Stow’s pastor, Tad Rogers, testified that Stow had been “up-front and candid” about his history, that Stow was careful to not be around children at the church, and that Rogers had no concerns about his own children being around Stow. Dale Sykes, a minister who had known Stow for twelve years, testified that he did not believe Stow posed a threat to the safety of the community. Charles Schelinski said that he also had known Stow for twelve years and that Stow was a “very reliable, excellent person ... [o]ne of the nicest people you ever want to meet[.]” Stow’s employer, Laura Newth, testified that Stow had worked for her for fifteen years and that she found him to be honest, responsible, and dependable. Newth said that she had never seen any indication of inappropriate behavior and that she did not believe there was any likelihood that Stow would “re-violate” the offense that he -was convicted of in Colorado-. -
The State, for its part, presented a copy of the “Risk Assessment 'and Offender Profile Report” that the Arkansas Department of Correction had gathered as evidence of why Stow was a safety threat. The risk- report details the ■ “official version” of Stow’s Colorado sexjoffense4 conviction. Stow admitted to an investigating officer that he had sexual contact with his daughter from the time she was six years old until she was thirteen years, old. He also admitted to having anal, vaginal, and oral sex with her on multiple occasions. The daughters therapist pointed out some “particularly ■ disturbing features” of the case, including how Stow recorded explicit messages embedded -in tapes for his daughter. When asked how he was able to get by with this without his wife knowing, he stated in part that he was “good at hiding things.” Stow reported that he “found the Lord in prison” but then stated “he didn’t really find the Lord because he went back to porn, prostitutes and excessive masturbation when he got out of prison.” Stow’s therapist relayed that he “presented a lengthy history of inappropriate sexual behaviors that have a strong addictive element.” Finally, among other things, the report stated that Stow had a “true” finding from the Crimes Against Children Department in 2008 regarding allegations of molesting his granddaughter.
Stow now argues that the circuit court erred in finding that he failed to prove that he is not likely to pose a safety threat to others. In his view, the court’s “exclusive reliance” on the risk report generated by the Department of Correction “has created the error.” Yet Stow did not object to the circuit court recéiving the risk report as evidence or argue below that the circuit court should not have relied on it. We therefore do not consider those arguments now. Oúr law is' well settled that to preserve an issue for appeal, a defendant must object at the first ’ opportunity. Mezquita v. State, 354 Ark. 433, 443, 125 S.W.3d 161, 166 (2003); see also Stewart v. State, 320 Ark. 75, 77, 894 S.W.2d 930, 932 (1995) (arguments not raised at- trial will not be addressed for- the first time on appeal). As to the remainder of | Rhis appellate argument, Stow is correct that he has gone over twenty years without another conviction and that four witnesses testified that he was not-likely to pose a threat to the safety of others, with no indication that the court questioned their credibility. But there was also contrary, detailed evidence in the risk-assessment report about Stew’s ability to “hide” his actions,- that he suffered from addictive sexual behaviors, and that there was a “true” finding against him for sexual abuse in 2008.
In conclusion, we do not disturb the circuit court’s conclusion that Stow failed to prove that he was no longer a safety threat. We affirm its denial of Stew’s petition to terminate his obligation to report as a sex offender in Arkansas.
Affirmed.
Vaught and Hixson, JJ., agree. | [
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CLIFF HOOFMAN, Judge -
. [ 1 Appellant Gregory L.. Pelts , (“Gregory”) appeals from a December 22, 2014 divorce decree filed by the Lonoke County Circuit Court in favor of appellee Shelly A. Pelts (“Shelly”).. On appeal, Gregory first contends that the circuit court erred when it treated nonvested retirement benefits as property and thus capable of distribution in a divorce. Second, Gregory contends that the circuit court erred when it ordered him to elect and pay for survivor benefits for Shelly on his nonvested retirement plan. Alternatively, he contends that the circuit court erred when it failed to order Shelly to pay for survivor benefits for him on her vested retirement plan. We affirm in part and remand for further clarification in part.
Gregory and Shelly were married on August 4,-1990, and separated on or- about July. 1218, 2013. Shelly filed a complaint for divorce on July 18, 2013. Gregory subsequently filed a response and counterclaim for divorce. After a hearing, the circuit court filed a temporary order on October 10.2013. addressing issues of child custody, alimony, and property division, which were agreed on by the parties. However, the parties disagreed as to the division of Gregory’s retirement account, which is also the subject of this appeal.
A second hearing was held on May 8.2014. At that hearing. Shelly testified that she was requesting that she receive one-half of the marital portion of Gregory’s military retirement benefits. She explained that he had served in the. military throughout most of their marriage. According to Gregory’s “Army National Guard Annual Statement.” Gregory entered into the military in 1985, and he had twenty-six years of “creditable service.” If he was to retire at the date of the hearing, he would receive $3,734.51 per month after he turned age 60. Shelly recognized the fact that he was currently serving active duty and that he would have twenty years of active-duty service if he served an additional four years. After an additional four years, he would be forced to retire because he would have served a total of thirty years. She denied, however, that there are two separate types of military retirement, reserve and active duty, because it is “called ‘creditable service’ ... not called ‘reserve service’ or ‘active service.’ ” Therefore, she testified that Gregory was diready vested in his military retirement because he had twenty-six years of creditable service.
Gregory testified that he was currently serving in the Army National Guard. He Centered into the Army Reserve on June 10,1985. He later transferred into ROTC and then went on active duty for three years. He further testified that he subsequently had a ten-month break in service but that he joined the Army National Guard in part-time reserve status for approximately eight or nine years., In 2001, he went back on active duty in the Army National Guard. ■
Gregory contended that there were two separate military retirement plans, active and reserve. He explained that he had twenty-six years of creditable service toward his reserve retirement. However, he intended to pursue his active-.duty retirement, and he testified that he would not be allowed to draw from a reserve program if he did so. At the hearing, he testified that he-did not have a problem with electing survivor benefits to-allow Shelly to continue - to draw benefits in the event -of his death. After he obtained twenty years of active-duty service, which .was in about four more years, he explained that he would receive benefits based on his highest three, years of base pay instead of a point-based system as is used in the reserve-retirement plan. While he admitted that his service during the marriage may be relevant to his active retirement, he explained that he was not vested in the separate active-duty retirement plan until he served twenty years on active duty, which he had hot done during the marriage.
Although he testified that he had four more years until he was able to withdraw active-duty retirement and that he planned on staying on active duty for another four years, he testified that a lot of things could happen that would stop him from completing the four |4years and that he was not ■yet vested in the active-duty retirement plan. He agreed that he was vested in his reserve-retirement plan, although he did not receive anything under that plan until he turned age sixty. That said, he admitted that some of his reserve time' was included in the military’s calculations when determining eligibility for active duty. On June 9, 2014, Shelly filed a posttrial brief. In her brief, she argued that Gregory was vested in his military retirement, based on his combined service, and that she should not be divested of that marital asset. In Gregory’s posttrial brief, filed on August 15,2014, he admitted that he was vested in his reserve retirement, but he argued that he was not yet vested in his active-duty retirement. He alleged that the two retirements were separate and should not be grouped together. He explained that he would not be able to collect under his reserve retirement until he was age sixty, but if he decided to continue in his active-military duty for another four years, after which he would be vested in his active-duty retirement, he would be able to start collecting active-duty retirement as soon as he retired.
Despite his initial testimony to the contrary at the May 8, 2014 hearing, Gregory additionally argued in his posttrial'brief that he should not be required to elect the survivor benefit plan when he retired because'"’the expense was 6.5 percent of the retirement check per month for doing so. He maintained that if the circuit court mandated that he elect the survivor benefit plan, then Shelly should be required to pay for that benefit herself. In summary, he requested the circuit court to find that he pay Shelly $1,258.02 per month |Bwhen he turned age sixty, which was based on the “May [Retirement Points Annual Statement] RPAS statement minus the points received prior to marriage and minus Defendant’s share of Plaintiff’s teacher retirement;” that ho party should be required to elect a survivor benefit plan for the other’ party; and that no party should be required to provide a cost of living adjustment for the other party.
On December 1, 2014, a third hearing was held.. At that hearing, Shelly’s counsel indicated that although the decree had been drafted, Gregory’s counsel had objected to the wording, and Gregory would not sign it. Both parties’ counsel provided additional oral arguments regarding them positions, and the circuit court issued a letter ruling in favor of Shelly and directed Shelly’s counsel to prepare a modified divorce decree. A divorce decree was filed on December 22, 2014, and it made the following findings regarding the division of the retirement benefits:
6. The issue of retirement benefits was- a disputed issue which was decided by the Court as follows:
a. The Plaintiff shall receive one-half of the marital portion of Defendant’s military retirement; without reduction for disability compensation, and regardless of the form the benefits take, including but not limited to, whether the Defendant draws an active duty or reserve retirement, as the Court finds this is an asset of the marriage which cannot be divested. 'The Order Dividing Military Retirement shall be prepared at Plaintiffs expense. Plaintiff is entitled to a portion of Defendant’s military retirement based upon the following formula: The numerator of the formula shall be the months the parties were married while Defendant was in the military service, or if applicable,’ the number of retirement points accumulated during the months the parties were married while Defendant was in the military service. The denominator shall be .the total years the Defendant ultimately served in the military, or if applicable, the retirement points accumulated during the Defendant’s military ^service. The numerator will be divided by the denominator and multiplied by one half to determine the amount of retirement to be paid to Plaintiff (months married / total months of service x ½ = Plaintiffs portion of retirement benefits);
b. That in accordance with Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986), and the facts herein, the Court finds that Plaintiff is entitled to the benefit of any enhancement to the retirement which may occur between the date of divorce and the Defendant’s retirement. Therefore, should the Defendant draw his retirement benefits earlier than age sixty so shall the Plaintiff. The Plaintiff shall draw retirement benefits from the - Defendant’s military retirement whenever Defendant draws;
c. Defendant shall elect and pay for survivor benefits for Plaintiff regarding his military retirement; and
d. Defendant is awarded one-half of the marital portion of Plaintiff & teacher retirement which has accrued and vested for which a Qualified Domestic Relations Order shall issue and be prepared at Defendant’s expense.
This timely appeal followed.
On appeal, this court reviews divorce cases de novo on the record. Taylor v. Taylor, 369 Ark. 81, 250 S.W.3d 282 (2007). With respect to the division of property, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself.is also reviewed under the same standard. Brave v. Brave, 2014 Ark. 175, 433 S,W.3d 227. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the circuit court’s superi- or position to determine the credibility of witnesses and the weight to be given their testimony.,, Id. As to issues of law, however, we give no deference to |7the trial court and rather review issues of law and statutory construction de novo. Hargrove v. Hargrove, 2015 Ark. App. 45, 453 S.W.3d 683.
Gregory first contends that the circuit court, erred when it treated nonvested retirement benefits as. property and thus capable of distribution in a divorce. In essence. Gregory admits that he is vested in his reserve-retirement plan, but he argues that he is not yet vested in his active-duty retirement plan. He argues that the two retirements are separate and should not be grouped together. Therefore, he argues that Shelly should only be allowed to receive one-half of her marital portion of the reserve retirement that he would have received at the date of divorce and that she should only be allowed to collect this retirement when he turns age sixty, regardless of whether he starts collecting higher retirement benefits in only four years under the active-duty retirement plan.
Shelly disagrees. She argues that “[wjhile the retirement benefits to which a service member may become entitled to is computed differently depending upon whether they serve in the non-regular or regular system, when they serve in both systems they still receive but one retirement. ' In other words, regardless of whether or not Appellant remains in the military long enough to draw ‘active duty retirement,’ he will receive but one retirement which is based upon his service in both the reserves and active duty.” Therefore, she argues that Gregory is already vested in receiving his military retirement, regardless of the form; and that she is entitled to any future enhancement under our supreme court’s holding in Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986).
|sWe find Shelly’s argument that there is only one military-retirement plan’ that encompasses varying benefits depending on the length and type of service convincing. This is supported by Gregory’s testimony that he would be entitled to receive only one retirement check for his combined service, and even' the relevant federal statutes use the term “retired pay,” regardless of whether the statute' references retirement benefits for reserve or active-duty service. See 10 U.S.C.A. § 12731 & 10 Ü.S.C.A. § 1401. Furthermore, Gregory has failed to provide any citation of authority that makes the distinction he now proposes.
-In determining whether Shelly, is entitled to Gregory’s military-retirement benefits, our supreme court’s decision in Christopher v. Christopher, 316 Ark. 216, 871 S.W.2d 398 (1994) is instructive.- If a divorcing spouse has achieved an entitlement to military retirement pay, that entitlement is an asset which may be divided between the parties to the divorce. Id. If, however, the divorcing military spouse has not served for a time sufficient to have earned the right to receive military retirement pay, the right has not “vested” and there is no asset to be divided .upon divorce.. Id. It is undisputed that Gregory’s right to military retirement pay is vested based on his reserve service.
Additionally, Shelly is entitled to any future enhancements. In Askins, our supreme court held that a spouse is entitled to any pre- and post-marital enhancement to military retirement pay. Askins, supra. There, the service member argued that the formula for dividing his military retirement should not have included any enhancements that occurred Rprior to their marriage or any enhancements that occurred after the date of divorce but before his actual retirement. Our supreme court disagreed and held the following:
The task of the court is to ascertain the value of the prospective military pension as an asset of marital property. Section 34-1214 requires that it be divided with fifty percent to each party unless other considerations stated in the statute make other than equal division more equitable.
If Colonel Askins retired tomorrow or had retired on the day of his divorce, as he is and was eligible to do, under the. chancellor’s formula Mrs. Askins would have been limited to a percentage of his base retirement pay determined as of that date. That is and was in Colonel Askins’s power to determine. If he had retired the day of the divorce and then gone to work for a company with a new retirement program, Mrs. Askins would not have been entitled to participate in the new retirement benefits. However, she is entitled to a percentage of whatever his military pension may be because, that is the asset to which she contributed.
We are in no position- to say, especially given the record before us, that Mrs. Askins’s contribution to the pension was any less because she was married to Colonel Askins in the middle of his career than it would have been had she been married to him for, say, the last twelve years of it. The enhancement of the ultimate retirement pay may be most dramatic at the end, but the record before us contains no evidence of that, and none whatever of military pay scales. Even if such evidence were in the record, we could not say with assurance that Mrs. ’ Askins’s entitlement, based on her contributions to the marriage, should be less than, as in the example above, 12/28 of the pay expected. While no cases we have found, other than the one containing the dissenting opinion cited above, have gone into this “enhancement” discussion, many have approved a formula like that used by the chancellor in this case.
Askins v. Askins, 288 Ark. 333, 336-37, 704 S.W.2d 632, 634 (1986). Applying the principles set forth by our supreme court to the present case, we conclude that the circuit court committed no error in awarding Shelly one-half of her marital portion of Gregory’s military retirement effective when Gregory retires and begins drawing benefits. Under the ' particular circumstances of this case, we think this case is akin' to Askins, supra, in that the trial court permitted Shelly to share in the post-divorce enhancement of the retirement pay, Incommensurate with the fraction of the years of marriage compared to Gregory’s total years of military service. We hold that such a division did not run afoul of our marital-property law. and was not clearly erroneous.
Gregory contends in his second point on appeal that the circuit court erred when it ordered him to elect and pay for survivor benefits for Shelly on his nonvested retirement plan. Gregory additionally argues that he should not have been.required to pay the entire premium for the survivor benefits and that the circuit court erred in ordering him to do so without any additional findings justifying the unequitable distribution. Shelly disagrees.
Shelly argues that the circuit court’s order does not require Gregory to pay the entire survivor benefit premium. Instead, she explains the premium “comes ‘off the top’ of the retirement before the division, with the effect that both parties ... [pay] their share of the [survivor benefit plan] costs.” In his reply brief, Gregory states that if this court finds that the circuit court did not err in awarding survivor benefits, then he does not object to the survivor benefits if the cost is shared by the parties as Shelly suggests in her brief. However, he suggests that the circuit court’s- order needs to be modified to clarify that “ ‘both parties end up paying their share of the [survivor benefits plan] costs’ instead of the current language that states that the ‘Defendant shall elect and pay....’”
As we found above in our discussion of the first point on appeal, the circuit court did not err in dividing Gregory’s military retirement, including any future enhancements. Additionally, we do not find that the circuit court erred in requiring Gregory to elect a |nsurvivor benefit plan in its marital-property division. In Arkansas, military retirement benefits are marital property. Surratt v. Surratt, 85 Ark. App. 267, 148 S.W.3d 761 (2004). In Dove v. Dove, 2009 Ark. App. 682, 2009 WL 4654830, this court found that a circuit court did not clearly err when it ordered the parties to divide the monthly premium for the survivor’s benefit. Although the circuit court’s order appears to order Gregory to bear the payment of the premium in its entirety, appellee suggests, without objection from appellant, that she would bear a proportional payment because of thé'manner in which the government issues the -retirement check. . Based on this confusion on appeal and Gregory’s concession that he would bear a proportional share of the obligation, as appellee indicated was her existing understanding of the order, we 'remand this issue- to the circuit court -for further clarification and modification of the divorce decree consistent with this opinion.
Finally,. Gregory briefly, argues that the trial court erred in not ordering Shelly to also pay for survivor benefits for him on her vested retirement plan. However, this issue was not sufficiently developed below to determine if such an election was eyen available .under Shelly’s retirement, Furthermore, the circuit court’s order does not contain a, specific ruling on this issue. Therefore, on this undeveloped record, we decline to address this issue. See Taylor v. Taylor, 369 Ark. 31, 250 S.W,3d 232 (2007); Parker v. Parker, 97 Ark.App. 298, 248 S.W.3d 523 (2007).
Affirmed in part; remanded for elarifi: cation.in part.
Gruber, Glover, Vaught, and Brown, JJ., agree.
Hixson, J., dissents in part and concurs in part.
. 10 U.S.C. § 12731(a)(4) provides, in pertinent part, that individuals are prohibited from receiving reservist retirement benefits if they are entitled to receive retirement from any of the armed forces, i.e., active-plan benefits. | [
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PER CURIAM
hThis is an , appeal from the denial of appellant Johnta Barber’s pro se petition for posteonviction relief filed pursuant to Rule 37.1 of. the Arkansas Rules of -Criminal Procedure. For the reasons set. forth below, the order of the circuit court is affirmed,
On January 8, 2009, Barber was convicted by a jury of aggravated robbery, kidnapping, possession of a firearm, discharg ing a firearm from 'a car, theft of property, aggravated assault, and fleeing. Barber was sentenced to an aggregate term of 684 months’ imprisonment. These convictions arose from Barber’s participation ‘ in a bank robbery along with two accomplices who, during the course of the robbery, forced three employees into the bank’s vault at gunpoint.
On March 3, 2010, the Arkansas Court of Appeals affirmed the convictions, finding that they were supported by substantial evidence, and also finding that there was no speedy-trial violation. Barber v. State, 2010 Ark. App. 210, 374 S.W.3d 709. On April 21, 2010, 2Barber filed a timely, verified Rule 37.1 petition, and, on December 23, 2014, he filed an amended petition.
In his original Rule 37.1 petition, Barber raised ineffective-assistanee-of-counsel claims based on the following allegations of error: 1) counsel’s failure to challenge the sufficiency of the evidence on lesser-included offenses and failure to request jury instructions on lesser-included offenses; 2) counsel’s failure to move for and obtain a mistrial based on the allegation that the prosecutor had improperly coached the State’s witnesses; 3) counsel’s failure to challenge the introduction of prior-conviction evidence; and 4) counsel’s purposely delaying the trial and otherwise failing to protect Barber’s constitutional right to a speedy trial by requesting unnecessary continuances. In addition to the aforementioned ineffective-assistance-of-counsel claims, Barber contended that the judgment of conviction is illegal on its face in-that it reflects that he was convicted of three Y felony kidnapping charges, even though the trial court had reduced the classification of each kidnapping charge to a B felony. Barber’s amended. petition raised one additional claim for relief, that his right to a speedy trial had been violated. Otherwise, the amended petition reasserted allegations made in the original petition.
On January ⅞0, 2015, the circuit court held a preliminary hearing where it considered whether the issues raised in both the original and amended petitions entitled Barber to an evidentiary hearing. The court ruled that .Barber had not raised sufficient facts to justify an eviden-tiary hearing. On-March 19, 2015, the circuit court issued a letter outlining its reasons for denying Barber’s claims for postconviction relief. On April 9, 2015, Barber filed a motion asking, among other things, that the circuit court rule on the ineffective-assistance-1 aof-counsel claims set forth in grounds two through four of his Rule 37 petition. Barber subsequently filed- a notice of appeal on April 17.2015, challenging the findings ■ encompassed in the circuit court’s letter. On April 28, 2015. after the notice of appeal had been filed, the circuit court filed its formal order denying relief and reiterating the findings set forth in its previous letter. The circuit court found that Barber’s speedy-trial claim had already been addressed and rejected on direct appeal, that Barber had failed to present factual substantiation of his entitlement to lesser-included-offense instructions, that Barber had failed to substantiate his allegation pertaining to the prosecution’s abuse of subpoena power, and that Barber had failed to demonstrate that his kidnapping charge was incorrectly classified as a Y felony.
This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, at 4, 433 S.W.3d 234, 239. A finding is clearly erroneous when, although there is evidence to support it. the appellate court, after reviewing the entire record, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, at 3, 400 S.W.3d 694, 697.
For his first point on appeal. Barber claims that his constitutional right to a speedy trial was violated. Assertions of trial error, even those of constitutional dimension, must be braised at trial :and on-appeal, and are not cognizable under Rule 37.1. Watson v. State, 2012 Ark. 27, at 3, 2012 WL 234634 (per curiam). Here, the speedy trial argument was raised and rejected on direct appeal. Barber, 2010 Ark. App. 210, at 12-13, 374 S.W.3d at 718. The circuit court did not clearly err when it summarily dismissed this claim.
Barber’s second and third points raise multiple ineffective-assistance-of-counsel allegations. When considering an appeal from a circuit court’s denial -of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. Under Strickland, the effectiveness of counsel is assessed by a two-prong standard. First, Barber must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 108, 251 S.W.3d 290, 292-93 (2007). In order to demonstrate counsel error,, a petitioner must- show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, at 4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable, professional assistance, and a.petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Bryant v. State, 2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per curiam).
|fiThe second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair 'trial. Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, Barber must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618; 622 (per cu-riam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Concluso-ry allegations unsupported by facts and which provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam).
Barber asserted in ground two of his amended petition, and reasserts in his second point on appeal, that his counsel purposely delayed his trial and otherwise failed.to protect,his right to a speedy trial. While the circuit court summarily dismissed Barber’s speedy-trial claim, it did not rule on this issue as it pertained to an ineffective-assistanee-of-counsel claim. Where the trial court provides -written findings on at least one, but less than all, of the petitioner’s claims, we have held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be considered on appeal. Cowan v. State, 2011 Ark. 537, at 3, 2011 WL 6275694 (per curiam).
Here, Barber filed a motion to modify the circuit court’s order before filing the notice of appeal and specifically requested a ruling on ground two of his petition.' The circuit court issued its order denying his claim, but it did pot address the motion to modify nor did it rule on the omitted issues cited in the motion. Where a petitioner requests the ^circuit court to provide a ruling on an omitted issue and the circuit court fails to do so, he must file for a writ of mandamus in this court, asking this court to direct the circuit court to act on the motion to provide the requested rulings. Strain v. State, 2012 Ark. 184, at 7, 423 S.W.3d 1, 6. Because a motion to address an omitted issue in a Rule 37 petition is ministerial and is not discretionary, a writ of mandamus is the only remedy available to a postconviction petitioner. Id.; see Carter v. Chandler, 2012 Ark. 252, at 2, 2012 WL 1950250 (per curiam) (holding that the “deemed denied” provision of Ark. R.App. P. — Civ. 4(b)does not apply to Rule 37 appeals and a petitioner’s recourse is through a writ of mandamus).
Barber’s third point on appeal raises his remaining claims of ineffective assistance of counsel, which are as follows: his counsel failed to challenge the sufficiency of any lesser-included offenses or to submit jury instructions on lesser-included offenses; failed to move for a mistrial because the prosecutor had improperly coached witnesses before the trial of Barber’s two codefendants; failed to challenge evidence of prior convictions introduced during the sentencing phase; and finally, that counsel was unprepared for trial. The circuit court’s order denying Barber’s petition did not address the last two allegations of error with respect to evidence of criminal history and trial preparation, despite Barber’s motion to modify. Barber’s failure to obtain a ruling on these omitted issues precludes their review on appeal. Strain, 2012 Ark. 184, at 7, 423 S.W.3d at 6.
Barber’s claim that counsel failed to challenge the sufficiency of the evidence for lesser-included offenses is wholly without merit because no instructions on lesser-included offenses were submitted to the jury for consideration, and substantial evidence supported Barber’s convictions for those offenses for which the jury convicted him. Barber, 2010 Ark. 7App. 210, at 6-10, 374 S.W.3d 714-16. Barber also contends that his counsel failed to submit jury instructions on lesser-included offenses and that, but for his counsel’s errors, he could have been convicted of lesser offenses than those for which he, is currently serving time. There is nothing in the record to demonstrate entitlement to jury instructions.on lesser-included offenses.
Barber was charged with and convicted of multiple offenses that included the following: one count of aggravated robbery, three counts of kidnapping, one count of possessing a firearm, one count of discharging a firearm, one couiit of theft of property valued at more than $2,500, one count of fleeing in a vehicle, and one count of fleeing on foot. Barber did not specify which of the aforementioned charges were subject to instructions on lesser-included offenses, nor' did he describe what evidence supported his entitlement to such instructions. Once an offense. is determined to be a lesser-included offense, the circuit court is obligated to so instruct the jury only if, there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Green v. State, 2012 Ark. 19, at 6, 386 S.W.3d 413, 416-17. Barber does not identify the lesser-included offenses which his counsel allegedly overlooked, and he points to no evidence that would have given rise to a rational basis for such instructions.
IsBarber further contends that because the trial court reduced the kidnapping offense from a Y felony to a B felony, counsel erred by failing to ensure that the jury instruction conformed to the court’s ruling. Kidnapping is classified as a Y felony except that the offense is to be classified as a B felony .if the defendant can. show that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial. Ark. Code Ann. § 5-ll-102(b)(2) (Repl.2006). Accordingly, the trial court reduced the classification of the three kidnapping charges because the'three bank employees were safely released. However, kidnapping, which qualifies as á Class B felony, is not a lesser-included offense of a kidnapping that constitutes a Class Y felony. Woods v. State, 302 Ark. 512, 514, 790 S.W.2d 892, 893 (1990). Rather, the offense is still kidnapping, even when there is a voluntary, safe release of the victim. Id. Therefore, the proper instruction for a B-felony kidnapping offense was given to the jury in this case.
Barber further contends that counsel was deficient when he failed to move for a mistrial because the prosecutor allegedly abused his subpoena power and subjected the State’s witnesses to a “dress rehearsal” prior to the trial of Barber’s codefendants. The record reveals that Barber’s counsel made a motion to the trial court which adopted a previous motion filed by counsel- for Barber’s codefen-dants — Cornelius Paige and James Walker — wherein the trial court was asked to exclude the testimony of certain witnesses who were allegedly seen with the prosecutor “dress-rehearsing” shortly before the trial of-Paige and Walker.
| sBarber cites to and relies on this court’s decision in Cook v. State, 274 Ark. 244,247, 623 S.W.2d 820, 822-23 (1981), for the proposition that, under the circumstances, .he was entitled to a mistrial based on the alleged witness coaching.
In Cook, we expressly limited our holding to the facts of that case, and the dispositive fact of that case was the timing of the events, in that the prosecutor had coached the State’s witnesses immediately prior to trial. Cook, 274 Ark. at 248, 623 S.W.2d at 823. In the instant case, the alleged witness coaching occurred in 2008, one year before Barber’s trial. Therefore, the facts surrounding the interaction of the prosecutor with the State’s witnesses are irrelevant to Barber’s ineffective-assistance-of-counsel claim because he did not offer facts that any witnésses were inappropriately coached immediately before his trial.
In his fourth and final point raised on appeal, Barber contends that the circuit court erred by denying him relief without first conducting an evidentiary hearing. We have explained that Rule 37.8 clearly grants the trial court discretion to decide whether the files and records are sufficient to address the petition without a hearing, and the trial court need not hold an evi-dentiary hearing where it can.be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Greene v. State, 356 Ark. 59, 65, 146 S.W.3d 871, 877 (2003). Moreover, conclusory . allegations .that are unsupported by. facts do not provide a basis for either an evidentiary hearing or postcon-viction relief. Id. For 'the reasons stated above, Barber’s speedy-trial claim was not cognizable, and his ineffective-assistance-óf-counsel claims were based on conclusory allegations with no factual or evidentiary basis. Thus, the circuit court did not abuse its discretion when it entered its order without first holding an evidentiary hearing.
| inFinally, Barber alleged in his Rule 37 petition and in his amended petition that -his sentence was illegal in that the judgment and commitment order reflects convictions for three Y-felony kidnapping offenses, when, in fact, the trial court had reduced the classifications to B. felonies. While this issue was raised in both petitions, Barber failed to raise it in his appeal to this court.
The issue of an illegal sentence is an issue that we treat as one of subject matter jurisdiction, which this court can raise sua sponte, even when it has not been raised on appeal. Harness v. State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003). However, the sentence must be an illegal sentence before this rule applies. Thus, we must review the record to determine whether .Barber’s kidnapping sentences are illegal and subject-to review and correction on appeal. Id. at 339, 101 S.W.3d at 238. A void or illegal sentence is one that is illegal on its face. Hodges v. State, 2013 Ark. 299, at 3, 2013 WL 3946080 (per curiam). A sentence is illegal on its face when it exceeds the statutory-maximum-.for the offense for . which .the defendant was convicted. Id. If a sentence is within the limits set by statute, it is legal. Id.
The record in' Barber’s case, the jury was instructed that Barber was a habitual offender and the range of sentencing for the three kidnapping offenses was not less than six years nor more than fifty years. The jury sentenced Barber to ten years for each kidnapping offénse, and these sentences were imposed concurrently by the trial court. The sentences for the kidnapping convictions do not' exceed the maximum sentences.' See Ark.Code Ann. § 5-4-4Ó1 (Repl.2006) (setting forth the maximum . sentences for these classified felonies). InAn illegal sentence must be facially invalid, that is,, it must be apparent from the face of the judgment-and-commitment order that the sentence exceeds the statutory maximum, for the .offense for which Barber was convicted. Hodges, 2013 Ark. 299, at 3, 2013 WL 3946080. Heref the judgment-and-commitment order reflects convictions for three felonies classified as Y felonies and sentences that fall within the appropriate range for this classification. Because the sentence is not illegal on its face, the issue raised below, but not on appeal, is abandoned, and cannot be reviewed or corrected by this court. Harness, 352 Ark. at 339, 101 S.W.3d at 238.
This court will, uphold a judgment of the circuit court unless there is a showing that the judgment was clearly erroneous. Conley, 2014 Ark. 172, at 4, 433 S.W.3d at 239. The burden is entirely on the petitioner to provide facts that affirmatively support his claims of ineffective assistance of counsel, and neither concluso-ry statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Anthony v. State, 2014 Ark. 195, at 11, 2014 WL 1716538 (per curiam). Barber has not met this burden. Further, the circuit court did not err when it dismissed the speedy-trial claim as not cognizable. Accordingly, the circuit court’s order is affirmed.
Affirmed.
. A notice of appeal that is filed before the circuit court issued its order, but after the court's decision was announced, is treated as being filed timely, i.e., one day after the order was entered. Ark. R.App. P. — Civ. Rule 4(a) (2015). Here, appellant’s notice of appeal is timely becaus.e it was filed after the circuit court's ruling had been announced in its letter dated March 19, 2015.
. Barber was charged with five counts of attempted capital murder but was acquitted of those charges. In addition, Barber was found guilty of multiple misdemeanor traffic offenses, which merged with his felony convictions. The misdemeanor violations included improper use of registration, driving left of center, driving on the shoulder, failure to obey official devices, and driving without a --license.
. Th|s was the sentencing range for an habitual offender convicted of a Class A felony un.der Arkansas Code Annotated section 5-4-501(a)(l)(2)(B)(Repl.2006). | [
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ROBERT J. GLADWIN, Chief Judge
| ^Appellants Thomas John Kennedy of Arkansas, DDS, PC, d/b/a Dentures and Dental Services, and Dr. Ricky Perry appeal the order of the Saline County Circuit Court granting appellee’s motion for a new trial. We affirm.
I. Facts
This appeal' originated in 2011 when ap-pellee Barbara Ausbrooks filed a malpractice lawsuit under the Arkansas Medical Malpractice Act (the “AMMA”) against appellants arising out of dental care and treatment she received from Dr. Perry in 2010 and 2011.
The four-day jury, trial began on September 22, 2014. During the trial, appel-lee presented evidence from two expert witnesses in the dental field, as well as another third-party treating dentist and several lay witnesses. Appellants presented testimony from Dr. Perry; a dental-expert witness, Dr. Richard Hixson; a treating dentist; a-treating physician; and an employee of the dental clinic.
12Shortly before the trial, appellee filed a motion in limine in which'she argued that the testimony of appellant’s expert, Dr. Hixson, should be excluded. Dr. Hixson testified in his deposition that appellants “probably” fell within the standard of care, but he said he did not know what the standard was; accordingly, his definition was inconsistent and therefore inadmissible. Dr. Hixson’s deposition revealed, at best, that his “idea” of a standard of care was a subjective standard. He testified that if there is no dental proclamation from the dental board, then there is no standard of care in Arkansas. The circuit court denied appellee’s motion in limine.
At trial, Dr. Hixson’s testimony on direct examination was cursory, and on cross-examination, he was confrontational with appellee’s counsel and engaged in long narratives. Appellee’s counsel requested that the jury be excused, and the circuit court attempted to correct Dr. Hix-son’s behavior. When the jury returned to the courtroom, Dr. Hixson ignored the circuit court’s previous order. The circuit court stopped the proceedings a second time, excused the jury again, and indicated its displeasure with Dr. Hixson’s behavior.
On September 25, 2014, after hearing all the evidence introduced by the parties, the instructions of the court, and the arguments of counsel, the jury returned a unanimous verdict in favor of appellants. On September 29, 2014, appellee filed a motion for new trial based on numerous grounds, including the contention that testimony from Dr. Hixson “appealed to the jury’s prejudice” and “foreclosed other areas of cross examination.” In support of her request for a new trial, appellee fur ther cited “multiple irregularities and 1 ¡¡surprises,” including a record that reflected the fact that Dr. Hixson’s testimony “changed at trial.”
A full hearing was held on appellee’s motion on November 6, 2014. After argument from both- parties, the circuit court found that Dr. Hixson’s answers to questions on cross-examination were “over broad, over the line.” The circuit court further concluded that “Dr. Hixson essentially accused [appellee’s trial counsel] of being dishonest, of trying to trick the jury, of trying to fool the jury, and trying to make the jury feel foolish.” Although the circuit court did not specifically articulate how its interpretation of Dr. Hixson’s testimony impacted the jury’s decision or affected appellee’s rights at trial, on November 6, 2014, the circuit court granted appellee’s motion for new trial. Appellants filed a notice of appeal on December 2, 2014, from the order granting appellee a new trial.
II. Standard of Review
This court will not reverse an order granting a new trial unless there has been a manifest abuse of discretion. See Smith v. Hopper, 2015 Ark. 210, 462 S.W.3d 335. Manifest abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. English v. Robbins, 2014 Ark, 511, 452 S.W.3d 566. A circuit court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. Id. at 4, 452 S.W.3d at 570. A showing of an' abuse of ’ discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id. Accordingly, the party has less basis for a claim of prejudice than ' does one who has unsuccessfully moved for a new'trial. Id.
|4III. Discussion
Appellants contend that the circuit court’s award of a new trial was an abuse of discretion because no evidence was presented to suggest that appellee’s substantial rights were materially affected. Rule 59(a) of the Arkansas Rules of Civil Procedure (2015) provides that as a prerequisite to granting a new trial, the circuit court must first determine that the stated basis for a new trial was “materially affecting the substantial rights” of the moving party. Notably, our supreme court has held as follows with regard to the. granting of a new trial:
We have stated that ‘[a] verdict may not be set aside arbitrarily and without reasonable cause.’ Granting a new trial on the basis that a witness was generally ‘nonresponsive’ is , arbitrary and unreasonable. It invites abuse and threatens the right of trial by jury. In practical effect it permits the trial court to substitute its view of the evidence for that of the jury.
Suen v. Greene, 329 Ark. 455, 463, 947 S.W.2d 791, 796 (1997). In Suen, the circuit court’s grounds for granting a new trial were based on conduct of the appel-lee’s counsel and because the circuit court decided it had committed error in not striking the testimony of an expert witness, Id. at 463-64, 947 S.W.2d at 796. With regard to the expert witness, our supreme court noted as follows:
[W]e have not found any examples where the answers provided by .Dr. Al-Mefty, or the rulings of the trial court constituted irregularities in the proceedings which prevented appellee from having a fair trial:.,. While Dr. Al-Mefty exhibited some reluctance to give answers during cross examination, the trial court guided and prodded with the re- suit being that the appellee ultimately obtained an answer to each question.
5Id. at 463, 947 S.W.2d at 796. The Suen court went on to note that “[i]t is well established that the trial court should not substitute its view of the evidence for that of the jury.” Id. at 464, 947 S.W.2d at 796.
Appellants claim that the facts of this case are similar to those addressed by the Suen court. Although the circuit court in this case had to admonish Dr. Hixson to answer the questions and stop editorializing, appellants' submit that Dr. Hixson ultimately complied with that instruction, answered appellee’s counsel’s questions, and the cross-examination was completed without incident.
Equally as ifnportant, appellants claim that appellee has presented no evidence to suggest that Dr. Hixson’s testimony actually caused any impact on the jury or clear articulation as to why the testimony negatively impacted appellee, and they maintain that there is no objective indication of either in the -record. . Appellants assert that the circuit court’s decision to grant a new trial based on its own opinion that the testimony was “over the line,” without any objective evidence that the testimony actually affected the rights of appellee, is nothing more than a circuit court substituting its'view of the evidence for that of the jury, which is not a permissible basis for granting a new trial under Arkansas law.
We disagree and hold that the circuit court was within its discretion to order a new trial given the cumulative effect of allowing Dr. Hixson to testify as an expert, where he had provided a subjective opinion as to the standard of care, had insufficient knowledge'of the facts' concerning appel-lee’s case, and could not state with a reasonable degree of medical certainty whether Dr. Perry had met the standard of care. Dr. . Hixson then engaged- in ^confrontational behavior as the final witness in -the trial to such an extent that it prompted the circuit court to halt the proceedings on two separate occasions.
Appellants next argue that the circuit court erred as a matter of law in granting a new trial under Arkansas Rules of Civil Procedure 59(a)(1) and 59(a)(2). Those portions óf Rule 59 read as follows:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of the court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party....
Ark. R. Civ. P. 59. Appellants note that our supreme court has held that a contemporaneous objection is required when a new trial is sought on the basis of accident or surprise under Rule 59(a)(3), as well as Rule 59(a)(8)-of the Arkansas Rules of Civil Procedure. See Jones v. Double “D” Properties, Inc., 352 Ark. 39, 98 S.W.3d 405 (2003); Jones Rigging & Heavy Hauling, Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002). The justification for the contemporaneous-objection requirement was articulated in Lee v. Daniel, 350 Ark. 466, 476-77, 91 S.W.3d 464, 470 (2002) (internal citátions oniittpd)':
In Selph v. State, this court noted that the reason, for requiring an objection before the trial court is to discourage ‘sandbagging’ on the part of lawyers who might otherwise take a chance on a .favorable result, and subsequently .raise a constitutional claim if the gamble did not pay off
As such, our supreme court has expressed a clear disfavor for allowing a party to withhold seeking relief in the form- of a mistrial or continuance in the face of apparent grounds for new trial during the proceedings.
| yAppellants point out that counsel for appellee never formally objected to any testimony of Dr. Hixson. While acknowledging that counsel did request a break so that counsel for appellants “[could] talk to his witness,” and later requested that “[sjomebody can tell this man to answer my question in order,” both of which resulted in a halt in the proceedings and the jury being excused, appellants focus on the fact that there was no formal objection or specific argument or assertion by appel-lee’s counsel that Dr. Hixson’s testimony was materially affecting the substantial rights of appellee. At no point did counsel for appellee request a continuance, a mistrial, an instruction to the jury, or any other form of relief indicative of a claim that the information was grounds for a new trial or even harmful to appellee in general. Counsel for appellants was instructed to speak with Dr. Hixson as requested by counsel for appellee. Without further objection from counsel for'appel-lee, the circuit court did sua sponte instruct Dr. Hixson to answer questions and refrain-from making abrasive remarks to counsel during cross-examination. Following that instruction, the cross-examination continued to completion, and the jury ultimately found in favor of appellants without any further objection or reference to Dr. Hixson’s testimony. Appellants urge that the record before us confirms that appel-lee’s counsel received all relief requested with regard to Dr. Hixson’s testimony.
Further, upon filing the motion for new trial, appellee’s counsel noted, for the very first time, that, “[a]fter reflection, undersigned counsel moves the Court to grant a new trial,” and for the first time contends that Dr. Hixson’s “testimony and demean- or” were leading to juror reactions and constituted “irregularities and surprises that prevented a fair trial.” Appellants note that none of these concerns were conveyed to the circuit court during |sthe proceedings. And they assert that appel-lee cannot argue that those concerns were even implied to the circuit court during the proceedings in light of the testimony in the record quoted above.
Procedurally, we note that in Hopper, swpra, our supreme court held' that a failure to object does not always prevent the circuit court from granting a new trial. It held that the reason an objection is typically'required is to apprise the circuit court of an error, and that all that is “required” is that the error be directed to the circuit court’s attention in some appropriate manner, so that the court has an opportunity to address the issue. Id., 462 S.W.3d 335 In Smith, the circuit court’s becoming aware of the error on its own was sufficient for preservation of error] Here, ap-pellee’s counsel filed a motion in limine before trial related to Dr. Hixson’s testimony, and at trial, requested that the jury be excused, then requested that Dr. Perry’s counsel speak with his witness in response to confrontational behavior and narrative testimony. Appellee claims, and we agree, that under" Hopper,' this was sufficient to preserve the objection.
We next address the merits of appellants’ argument, whether Dr. Hixson’s surprise testimony, lack of knowledge of the standard of care and the facts of the case, which were admitted over a motion in li-mine, combined with his prejudicial conduct, supported the circuit court granting appellee a new trial. In Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S.W.2d 738 (1953), our supreme court held as follows:
Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on-his .part does not necessarily mean that the evidence given by him is substantial, when he has.not given a satisfactory explanation of how he arrived at- the conclusion.
Uld. at 851, 256 S.W.2d at 741. The court reiterated that in order to support a verdict the evidence must be of a convincing nature, imparting qualities of reasonable certainty. Id., 256 S.W.2d at 741. See also Hamilton v. Allen, 100 Ark.App. 240, 267 S.W.3d 627 (2007) (holding that a physician-expert’s testimony was. insufficient to withstand a motion for, summary judgment when his opinion regarding physician negligence was speculative). The federal district court for .the Eastern District of Arkansas held in Spurlock v. Lawson, 881 F.Supp. 436 (E.D.Ark.1995), that the plaintiff had a right to know what the expert’s testimony would be in order to prepare for trial and acknowledged that the admission of undisclosed medical-expert testimony which introduced a new theory of liability could preclude a plaintiff .from effectively addressing the charge. See id.
Based on previous case law, combined with Dr. Hixson’s lack of knowledge of the facts, his speculative view of the required standard of care, and his behavior at trial, we hold that the circuit court did not abuse its discretion in granting appellee’s motion for a new trial. Despite the assertion that appellee’s filing a motion in limine to exclude Dr. Hixson for having an inadequate grasp of the governing standard of care does not count as an objection to Dr. Hix-son’s testimony at trial, and that at the time that testimony could have been Considered helpful to appellee’s case, the record indicates that the circuit court 'was aware of appellee’s concerns, stopped the proceedings, excused the jury, 'and addressed the issues with Dr. Hixson on two occasions. Further, the circuit court conducted a full hearing on appellee’s motion for a new trial during which both parties’ arguments were duly considered. Accordingly, we hold that the circuit court did not err and affirm the grant of appellee’s motion for a new trial.
' 11 (Affirmed.
Abramson and Brown, JJ., agree. | [
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RITAW. GRUBER, Judge
h Liberty Bank of Arkansas (the bank), as successor trustee of the Vernon E. Arnold Revocable Trust, appeals from an order of the Pope County Circuit Court imposing a constructive trust on the trust’s assets in favor of appellee Clyde Byrd, Jr. Byrd cross-appeals from the circuit court’s award of attorney’s fees to the bank from assets subject to the constructive trust. We affirm on direct appeal and on cross-appeal.
I. Facts and Procedural History
Vernon Arnold and Ardellia “Hollye” Arnold were married in 1981. There were no children born of the marriage, but each party had one child from a previous marriage. By [ 2all accounts, Vernon and Hol-lye got along well together during their marriage. When Hollye’s health began to fail,- Vernon provided good care and treatment for her. During their marriage, Hol-lye transferred some of her separate personal and real property to Vernon and ■herself as joint tenants with right of sur-vivorship. These jointly .held assets eventually -had an accumulated value of approximately $1 million. Additionally, Hollye owned another $1 .million in separate, premarital assets.
In 2004 and in 2008, Hollye executed durable powers of attorney naming Vernon as her attorney-in-fact. She also executed a durable health-care power of attorney in favor of Vernon in September 2009.
In August 2012, Vernon created the Vernon E. Arnold Revocable Trust (the trust) that he funded by using the powers of attorney to transfer the parties’ jointly held real property, as well as personal property, to his trust. The trust instrument provided that, following Vernon’s death, all of the trust income and any needed principal were to be used for Hol-lye’s care for the remainder of her life. Any balance of the trust assets after Hol-lye’s death was to be paid to the remainder beneficiaries. The bank was designated as successor trustee to manage and expend the trust assets necessary to provide continued care to Hollye.' Hollye was incapacitated at the time in a nursing home.
Vernon Arnold died on February 25, 2013; Hollye died one week later, on March 4, 2013.
laOn May 3, 2013, Byrd filed a petition seeking to have Hollye’s will, executed in 2004, admitted to probate. In her will, Hollye bequeathed her individual assets to Byrd if Vernon should predecease her. In the petition, Byrd requested that he be named executor of Hollye’s estate. On May 16, 2013, an order was entered admitting the will to probate and appointing Eiyrd as executor:
On August 5, 2013, Byrd, as Hollye’s executor, filed suit against the bank as successor trustee of the trust, asserting causes of action for breach of fiduciary duty, the cancellation of Vernon’s conveyances to the trust, and the imposition of a constructive trust on the assets in Vernon’s trust. The basis for the claims was the assertion that Vernon had a fiduciary duty to act on Hollye’s behalf and had breached that duty by using her powers of attorney to transfer their joint assets to the trust. According to Byrd, -if Vernon had not conveyed all of the assets to the trust, those assets would have passed to Hollye as the surviving joint tenant and then to Byrd under the terms of Hollye’s will. Byrd later amended his complaint to add claims for unjust enrichment; a claim for damages to Hollye based on the bank’s failure to distribute trust income to Hollye in accordance with the terms of the trust; and claims of breach of a confidential relationship, undue influence, fraud, and lack of consideration. The bank answered, denying' the material allegations of the complaint and its amendments.
■ Jacob Arnold, one of the trust beneficiaries, filed a petition to intervene, stating that if Byrd’s suit was successful, it would defund the trust and deprive him of his interest in the trust. Arnold was allowed to -.intervene, and he filed an answer -to Byrd’s complaint that | ¿largely mirrored the bank’s answer, Arnold also filed a third-party complaint against Byrd, individually, contending that if Byrd is successful in his lawsuit, he would control all the assets in the trust and be unjustly enriched by also, owning the joint portion of Vernon’s ■ assets that are to go to other heirs. He requested an equitable lien on all trust assets Byrd receives as- Hollye’s heir.
The case proceeded to a bench trial. In its’ order, the court found that Hollye came into the marriage with premarital assets in excess of $1 million, contributing approximately 80% of the household income during the marriage with her investments and retirement income.- The court found that Hollye’s testamentary intent was . that Vernon was to be provided for with the surviv- orship accounts but to otherwise leave all of her property to Byrd. The court also found that Hollye was incapacitated by the time of her admission to a nursing home in late 2010. The court found that Vernon had both a fiduciary duty to Hollye and a confidential relationship with her, which he violated when he conveyed ownership of real property, investment accounts, and CDs held as joint tenants with right of survivorship to the trust. Vernon’s funding of the trust with jointly held assets was found to be contrary to Hollye’s estate plan and the intent set forth in her powers of attorney and did not destroy Hollye’s rights of survivorship in those assets. The court found that a presumption of undue influence was raised because of Vernon’s confidential relationship with his wife, coupled with the durable powers of attorney, Hollye’s lack of capacity, and his control of her financial affairs. The court found that the presumption was not rebutted by the bank or by Arnold. Based on the finding that Vernon had breached his fiduciary duty, the court imposed a constructive trust on the trust assets in favor of Byrd as Hollye’s [^executor. The court denied Jacob’s third-party complaint because Vernon had predeceased Hollye, who became the sole owner of the assets upon Vernon’s death. The court ordered each party to pay its own attorney’s fees.
The bank filed a posttrial motion for additional findings relating to its continuing duty to manage and invest the trust assets. The motion asked the court to specify a date for the transfer of the trust assets. The motion also sought confirmation that the attorney’s fees and expenses that had previously been paid from the trust assets had been properly deducted from the trust corpus prior to any transfer. Byrd responded, arguing that the bank assumed the risk of litigation. He also asserted that the court had already addressed the issue when it ruled that each party was to bear its own attorney’s fees and expenses.
Following a hearing on the bank’s post-trial motion, the circuit court entered a supplemental order directing that the trust’s balance as of the date of trial, less actual taxes, trustee fees, and expenses, be transferred on September 8, 2014. ' The court also held that the attorney’s fees and expenses already paid by the bank were reasonable and necessary fees and expenses incurred by the trustee. This timely appeal and cross-appeal followed.
IL Standard of Review
The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Rose v. Rose, 2013 Ark. App. 256, 427 S.W.3d 698; Winchel v. Craig, 55 Ark.App. 373, 934 S.W.2d 946 (1996). Arkansas, appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual and legal questions. Rose, supra; In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. A finding by |ca circuit court in an‘equity case will not be reversed unless it was clearly erroneous. Cason v. Lambert, 2015 Ark. App. 41, 454 S.W.3d 250.
III. Arguments on Direct Appeal
•On appeal,- the bank argues that the circuit court erred by (1) .finding that Byrd, as executor of Hollye’s estate or individually, had standing to present a claim for fraud on Hollye’s marital rights; (2) shifting the burden of proof to the bank to establish by clear and convincing evidence the validity of the jointly held assets to the trust; (3) computing the respective financial contributions of Vernon and Hol-lye to their marriage; (4) finding that. Ver non breached his fiduciary duty to Hollye in transferring assets to the.trust; and (5) imposing a constructive trust on the trust’s assets.
The bank first argues that Byrd lacked standing, either individually or as Hollye’s executor, to bring the action for fraud on Hollye’s marital rights. We disagree because the circuit court found that Byrd had standing to bring the action under the Uniform Power of Attorney Act. Arkansas Code Annotated sections 28-68-116(a)(5) and (a)(6). (Repl. 2012) grant standing to review the conduct of an agent under a power of attorney to a person who would qualify as a presumptive heir of the principal or to any person named as a beneficiary to receive any property upon the principal’s death. Byrd has standing under both sections béeause he is Hollye’s only heir and was named as a beneficiary under her will. The bank does not discuss the court’s ruling on standing under section 28-68-116. An argument not raised by the appellant in its brief cannot be considered by this court on appeal. Vickers v. Freyer, 41 Ark.App. 122, 129, 850 S.W.2d 10,13 (1993).
17We discuss the bank’s second, third, and fourth points together because there cannot be a discussion of one point without discussing certain aspects of the other points. It is undisputed that the parties were in a fiduciary relationship: a person who holds a power of attorney is an agent, and “a fiduciary relationship exists between principal and agent in respect to matters within'the scope of the agency.” Dent v. Wright, 322 Ark. 256, 261, 909 S.W.2d 302, 304 (1995). Also, in certain circumstancés a presumption of undue influence may arise in connection with the execution of a deed. See Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999) (gift to the dominant party in a.confidential relationship). Here, Vernon used the powers of attorney to transfer ownership of the marital residence held as tenants by the entirety to his trust. The same rebuttable presumption of undue influence arises when there is a relationship between a person who holds power of attorney and the grantor of that power. See Harbur v. O’Neal, 2014 Ark. App. 119, at 7, 432 S.W.3d 651, 657. Undue influence may also be inferred from the circumstances. Id. Thus, the circuit court did not improperly shift the burden of proof to the bank to establish the validity of the transfer of jointly held assets to the trust.
The. bank argues that the evidence shows that Vernon intended for the trust to provide for Hollye’s care for the remainder of her life. However, his intent for the jointly .held assets during Hollye’s lifetime is not the issue; rather, it is his intent for the disposition of those assets' after Hol-lye’s death that is dispositive.
The Uniform Power of Attorney Act provides that an agent shall attempt to preserve the principal’s estate plan, to the extent actually known by the agent. Ark. Code Ann. § 28-68-114(b)(6). It is undisputed that Vernon knew the details of Hollye’s estate plan; The | s2008 power of attorney provided that Vernon, as Hollye’s agent, could execute a trust instrument with dispositive provisions identical to . Hollye’s existing 2004 will. The 2008 power of attorney also specifically provided that Vernon could not use his authority to amend, alter, or revoke Hollye’s will. See also In re Estate of Garrett, 81 Ark. App. 212, 218, 100 S.W.3d 72, 76 (2003). However, the trust instrument provided that upon Hollye’s death,, the jointly held assets were to be disposed of according to Vernon’s estate plan, not Hollye’s plan. Thus, the circuit court correctly found that Vernon’s actions were contrary to Hollye’s testamentary intent, and plan.
The bank’s argument that Vernon, as a co-owner of the jointly -held assets, had the authority to make such transfers misses the point: Vernon could not destroy the joint tenancy in either the real or personal property by his unilateral actions. A spouse’s right of survivorship in real property can only be. dissolved by a divorce proceeding, death, or the voluntary action of both parties. Butcher v. Beatty, 2010 Ark. 13, 2010 WL 135188; Lowe v. Morrison, 289 Ark. 459, 711 S.W.2d 833 (1986). Moreover, even though one has a right to withdraw funds from a joint bank account, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant, see Dent, 322 Ark. at 262, 909 S.W.2d at 305, and when one withdraws in excess of his moiety, he is liable to the other joint tenant, for the excess withdrawn. Id. at 263, 909 S.W.2d at 305. Hollye’s interest as the surviving tenant in the funds continued . even after Vernon conveyed the jointly held real property and investment funds , to the trust. South v. Smith, 326 Ark. 774, 934 S.W.2d 503 (1996). Upon Vernon’s death, Hollye, as the surviving joint tenant, became entitled to all of the jointly held assets that Vernon had transferred to the trust. Id.; Miller v. Riegler, 243 9Ark. 251, 419 S.W.2d 599 (1967). Because the assets were jointly held with right of survivorship, it is unnecessary to discuss the bank’s argument'concerning the circuit court’s computation of Vernon’s and Hollye’s relative- financial contributions during the marriage.
Finally, the bank argues that the circuit court erred in imposing a constructive trust on the jointly held assets held in Vernon’s trust. The bank argues that there is no valid reason for imposition of a constructive trust because Vernon’s undisputed intent was to provide for Hollye’s needs during her life. However, as discussed above, that intent- was irrelevant. Moreover, Vernon’s ownership in the jointly held property terminated at his death. South, supra. Thereafter, his. trust could hold that property only for Hollye’s benefit, and a constructive trust was an appropriate remedy. Id. ■
IV. Arguments, on Cross-Appeal
On cross-appeal, Byrd argues that the court erred in awarding-fees to the bank from the trust assets upon which it had iñíposed a constructive trust. We believe that this' misconstrues what actually happened and the circuit court’s ruling.
In its final order, the circuit court ordered each party to bear its own attorney’s fees and costs. The bank filed a motion for additional findings in which it asked the court “to confirm that the trustee’s fees, charges,' and éxpenses, including attorney’s fees incurred [up to trial] may be properly deducted from the trust corpus upon which the constructive trust was imposed.” Byrd responded, arguing that the bank had assumed the risk of litigation and that the bank had consistently ignored Byrd’s claims to' property that ’the bank asserted was an asset of the trust. The court held a hearing on the motion. At that hearing, it was pointed hnout that the bank had already paid its attorneys. In an order, the court found that the attorney’s fees were reasonable and necessary expenses incurred and paid by the bank as trustee.
Citing Taylor v. Woods, 102 Ark.App. 92, 282 S.W.3d 285 (2008), Byrd argues that the circuit court erred in awarding fees to the bank because the bank was not the “prevailing party.” However, the reliance on Taylor is misplaced. In Taylor, we did indeed include this language: “[p]rior to awarding attorney’s fees, the circuit court must determine which party, if any; prevailed on the merits of the case as a whole.” 102 Ark.App. at 107, 282 S.W.3d at 295-96.. This was in rejecting the appellant’s argument that the circuit court should have awarded her fees for each discrete issue within the case. As authority, we cited Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006). However, Perry was a contract case where attorney’s fees were awarded under Arkansas Code Annotated section 16-22-308. This is obviously not a contract action; therefore,, section 16-22-308 and its requirement of a “prevailing party” is inapplicable. The circuit court recognized this at the hearing on the posttrial motion.
The circuit court ruled that the. fees were reasonable and necessary expenses of the trustee. Byrd does not address the court’s actual ruling. Therefore, we have no basis on which' to reverse. Vickers, supra.
Affirmed on direct appeal; affirmed on cross-appeal.
Whiteaker and Hoofman, JJ., agree.
, The specific bequests were $100,000 to Byrd; $100,000 to Vernon's son, Doug Arnold; $2S,000 to Byrd’s child, Kyle; $5,000 ’ to First Presbyterian Church; and the balance to Doug Arnold’s two children, Jacob Arnold ■ and Eric Crowley.
. Vernon’s will, which was never probated, left all of his -property, to the. trust, to be distributed according to the trust instrument.
. The total attorney’s fees and costs paid by the bank was-$44,824.71. | [
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WAYMOND M. BROWN, Judge
hThe Crawford County Circuit Court remanded an order of the Arkansas Insurance Department (Department) for further proceedings after the Department revoked the title-insurance license of appellee Ra-cheal Henley. The Department appeals the circuit court’s rilling, but we must dismiss' the appeal for lack of a final order.
In 2011 and 2012, the Department conducted an investigation of Henley’s employer, Edwards Title, LLC. The investigation stemmed from the theft of escrow funds by an Edwards, closing agent. Henley was not implicated in the theft, but the' evidence uncovered -during the course of the investigation convinced the. Department that both Henley, who was the title agency’s manager, and Charles Dyer, the agency’s owner,, had. committed, violations ■of Arkansas Insurance Department regulations and the Arkansas |2Insurance Code. The Department held hearings to determine whether Dyer’s and. Henley’s title-insurance licenses should be revoked.
Following a hearing, the Department issued an' order in October 2012 revoking Henley’s license. ' The order relied in part on Henley’s conduct as Edwards’s operations manager in the years prior to March 2011, which was when Henley actually received her' title-agent license. Henley appealed to the Crawford County Circuit Court, pursuant to the Administrative Procedure Act. She argued primarily that the Department erred in basing her revocation on activities that occurred before her March 2011 licensure. She also argued that the Department’s sanction of revocation was too harsh.
The .circuit court agreed that “the issues and complaints, that arose before [Henley] was licensed were given too much weight”-and that “a review of the Department’s sanctions in previous hearings does not yield a consistent view of what sanction is appropriate under similar circumstances.” The court therefore struck some of the findings-in the Department’s revocation order, although other findings were allowed to stand. The court then remanded the case back to the ■ Department for “further proceedings.” The Department filed an appeal in our court following the circuit court’s order of remand.
A circuit court’s order of remand to an administrative agency for further proceedings is not. a.final, appealable order. This is true even where, as here, the circuit | acourt has affirmed the agency’s findings in part. Because the order is not final, we lack jurisdiction to hear the present appeal.
The Department contends, however, that the circuit court’s decision is final pursuant Arkansas Code Annotated section 25-15-212(i). That statute provides that an agency order that is affirmed or affirmed in part by a court “shall be a final judgment subject to writ of garnishment or execution to the extent it is affirmed.” We disagree that section 25—15—212(i) confers finality for purposes of appeal in "this case. The statute is clearly concerned with finality for purposes of garnishment and execution, which are not at issue here. Further, the statute does' not resolve the question of whether a court’s ruling is final with regard to an appeal, nor does it address the question of finality when a case is remanded to the administrative agency. We therefore rely on our case law, cited previously, to hold that the appeal in this instance does not come from a final order of the circuit court.
The appeal is dismissed without prejudice, subject to re-filing upon entry of a final order.
Dismissed without prejudice.
Gladwin, C.J., and Abramson, J., agree,
.Wé affirmed me Department's revocation of Dyer's license in Dyer v. Arkansas Insurance Department, 2015 Ark. App. 446, 468 S.W,3d 303,
.See Ark.Code Ann. § 25-15-212 (Repl. 2014).
.See generally Floyd v. Ark. State Bd. of Pharmacy, 248 Ark, 459, 451 S.W.2d 874 (1970); Ark. Dep’t of Human Serv's v. J.N., 96 Ark. App. 319, 241 S.W.3d 293 (2006); Hargrett v. Dir., 44 Ark. App. 111, 866 S.W.2d 432 (1993) (per curiam); Baldar Elec. Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989).
. Oldenberg v. Ark. State Med. Bd., 2013 Ark, App. 599, 2013 WL 5745125.
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BRANDON J. HARRISON, Judge
h Sidney Crowley -appeals the Sebastian County Circuit Court’s order that terminated his parental rights to his three children. He argues that termination was not in the-children’s best interest. We find no error and affirm. • -
On 28' April'2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect for thirteen-year-old S.C., twelve-year-old C.C., and eleven-year-old M.C. The accompanying affidavit explained that DHS had received a referral on April 21 alleging educational neglect on the part of Crowley and failure to protect on the part of Laura Blansett, the children’s mother. An investigation revealed that Crowley, who was the custodial parent, had voluntarily left the |2children with their mother on April 20 “until such a time he could provide for them.” 1 The children reported that they had not been in school since 14 February- 2013 and that' they had lived in their father’s truck on at least two occasions.' The children also later reported physical abuse perpetrated by Crowley, which included beating C.C. with a metal stick and pointing a' machete at C.C.’s throat. The children also said that Crowley would'deny them food as á form of punishment. ■ On April 25, DHS exercised a seventy-two-hour hold on all three children based on “Threat of Harm, Educational Neglect, and not being able to ensure the safety of the'juveniles if [Crowley] would pick them up from Laura’s care.” The affidavit noted- that Crowley had been investigated for educational neglect and threat of harm in Oklahoma, that there had been a true finding on Crowley in 2003 for threat of harm and for-striking a child, and that Crowley had past criminal convictions for domestic battery, rape, ter-roristic threatening, and driving on a suspended license.
An ex parte order for emergency custody was granted on April 28, and at the May 2014 probable-cause hearing, the parties stipulated that probable cause existed at the time the emergency order was signed and continued to exist. Blansett was awarded one hour of supervised visitation; Crowley’s visitation was denied pending adjudication. DHS was ordered to develop a case plan and conduct a staffing within thirty days.
In June 2014, the circuit court adjudicated the children dependent-neglected, specifically finding that the children “are at a substantial risk of harm due to environmental neglect and physical abuse by the father.” The goal of the case was set as reunification with the mother with a concurrent goal of permanent custody with a family member. RCrowley, who did not attend the adjudication hearing, was not granted visitation. Blansett was granted visitation and ordered to attend parenting classes, maintain appropriate, housing and transportation, submit to a psychological evaluation, attend- domestic-violence classes, and submit to random drug screens. The court ordered that “[i]f the father presents himself to the Department and wishes to work services, he is hereby ordered to complete the same services as the mother, >in addition to anger management classes.”
The case was reviewed in: November 2014, and the court .found that Blansett had complied with the case plan in all respects. Accordingly, the court authorized a trial home placement with Blansett to commence immediately. The review, order noted that Crowley had not contacted DHS to receive services and had not complied with the orders of the court. The court ordered no contact between Crowley and the children.
In January 2015, the court found that the trial home placement had been successful and awarded custody of the children to Blansett. The court also found that Crowley had made no progress on the case plan, had not complied with the court’s orders, and had no contact with the children or DHS since the last review hearing.
In February 2015, DHS filed a motion to terminate Crowley’s parental rights, citing abandonment, .dependency-neglect as a result of neglect or abuse that-could endanger the life of the child, an incapacity or indifference to remedying underlying issues or factors, and aggravated circumstances. At the. termination hearing in April 2015, Crowley testified that none of the allegations against him were true and that Blansett had lied to DHS. He asserted that Blansett is a paranoid schizophrenic and a pathological liar. |4He also stated that he had never been given a copy of the case plan and that his case worker had lied to him. He admitted that he had attended the staffing but explained that he did not attend the adjudication hearing because it was “overwhelming.” He contended that if the physical-abuse allegations against him were true, then he would be in jail. He stated that he had not provided for the children with food, clothing, or money while they were in DHS’s custody because there was a no-cóntact order and because he would be -Accused of “trying' to buy them off.” He also asserted that the true finding in 2003' for" threat of harm and striking a child was “another lié.” He admitted that he was a registered sex offender, stemming from a rape charge in 2003, but explained that it was only because he was “young, dumb, and stupid, and took [a] plea bargain.”
As to his current circumstances, Crowley stated that he was staying with a friend and had no income. He also explained that he had a pending appointment with a cardiologist for a heart murmur and another appointment for hernia surgery. He agreed that if given the opportunity to complete the requirements of the ¿áse plan, he was ready and able to do that. He admitted he was unable to work but stated that it would be in the children’s best interest to be in his custody. He álso admitted that he had used illegal drugs, specifically methamphetamine, within the past week, and that he would probably fail a drug test. DHS then requested a drug test, which showed that Crowley was positive for methamphetamine, THC, and Oxy-codone.
Blansett . testified that she married Crowley in 2000 and that they divorced in 2002. She stated that he was extremely physically abusive, mostly to her but sometimes with the children as well. She explained that Crowley had legal custody of the children but that he |fisent her a text that said he and the kids had been living in his truck and eating out -of dumpsters. According to Blansett, he asked her to keep the kids until he got back on his feet. She stated that as soon as the children told her about the abuse, she contacted DHS and got them involved. She explained that the children, had been in her home since November 2014 and that they, were doing well. She said that they do not ask about their father and that they have not expressed an interest in seeing him. She explained that she was a stay-at-home mom and that her husband makes sufficient income to support the family.
Maty Isham, a family service worker, testified that she had been assigned to this case for a little over a month. She explained that she had reviewed the file and that Crowley had not tried to contact her. She testified that termination of Crowley’s parental rights was in the children’s best interest because the children were afraid of -Crowley. She also stated that the children were adoptable but that adoptability was,irrelevant in this case; DHS planned to leave the children with their mother.
At the conclusion of testimony and after hearing arguments from counsel, the court found that it was in the best interest of the children to terminate Crowley’s parental rights. The court found that
he has effectively abandoned the juveniles. The juveniles were removed from his home April 28th of 2014. He has not seen the children during that time; he has not provicled any amount of support to the children, has not contributed [monetarily], has not provided any food or clothing to them, has not followed the Case Plans or complied with the orders of the Court, has not been present at any of the hearings, other than the Probable Cause Hearing. The court believes that his lack of participation shows an indifference to remedy the issues before him. Those issues are continued drug abuse and the potential of severe harm to the children.
Ifiln its written order, the court found as follows:
In making the best interest determination, the Court has considered the issue of the adoptability of the juveniles and the risk of harm to the juveniles if there is continued contact with the father, Sidney Crowley. The Court notes that the issue of adoptability is not legally relevant in this matter.... The Court does find, however, that there is heightened risk of harm to the juveniles if the legal relationship between the juveniles and Sidney Crowley is not terminated. Based on this unacceptable risk of harm, the Court finds that it is in the best interests of the juveniles to terminate the parental rights of Sidney Crowley.
The 'court also' found' several statutory grounds for termination, namely, aggravated circumstances, abandonment, and an incapacity'or-indifference to remedying underlying issues or factors. Crowley filed a timely notice of appeal from the court’s order.
A circuit court’s order- that terminates parental rights must be based on findings proven by clear and convincing evidence. Ark,Code Ann. § 9 — 27—341(b)(3) (Supp. 2015); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is proof that will produce in the fact-finder a firm conviction on the allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Dinkins, supra., A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In' determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit judge to assess the witnesses’ credibility. Id.
The intent of Ark.Code Ann. §' 9-27-341(a)(3) is to provide permanency in a child’s life in all instances in which returning the, child -to the family home is contrary to the child’s health, safety, or welfare, 'and .the evidence demonstrates that a ■ return to the |7home cannot- • be accomplished in a reasonable period of time as viewed from the child’s perspective. An order forev'er terminating parental «rights must be based on 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 returning the child to the custody of the parent. .Ark.Code Ann. § 9-27-341(b)(3)(A).
Crowley asserts that terminating his parental rights was unnecessary and not in the children’s best interest. He argues that the children’s permanency was never at risk, as they were in their mother’s care and will remain in her care, and that a no-contact order would have sufficiently served the children’s best interest. He contends, that his compliance with the no-contact order throughout the pendency of the case shows his ability to abide by such an order and the lack of any future potential harm.
In support, he cites two cases, Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102, 2010 WL 374432, and Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456 S.W.3d 383, both of which involve a similar fact situation of termination of a father’s parental rights with the child or children remaining in the care of the mother. In Caldwell, this court concluded that, because the child remained in the permanent care of her biological mother, termination'of the father’s parental rights would not achieve permanency, which is the goal of the statute. Moreover, other' factors, inóluding preservation of the child’s relationship with' her paternal grandparents and'the' lack of any evidence that the father had physically abused or harmed the child, weighed against-termination. And in1 Lively, this court found error in the circuit court’s best-interest' détermínation because there was no evidence of adopta-bility; in addition, we noted that | ^terminating the -father’s parental rights jeopardized the children’s relationship with their paternal grandparents .as well as the financial support that the father might provide the children.
However, Caldivell and Lively are distinguishable from the present case. Unlike Caldwell, there was evidence in this case that Crowley had physically abused the children, and according to the case worker, the children- were afraid of him. Also, in both Caldwell and Lively there was evidence of a strong relationship between the children and the paternal grandparents, which was jeopardized by termination; here, we have no such consideration. As such, this case is more akin to Hayes v. Arkansas Department of Human Services, 2011 Ark. App. 21,2011 WL 135198, in which this court held that where a parent subjected his children to violence and abuse, termination of a father’s parental rights meets the purpose of Ark.Code Ann. § 9 — 27—341(a)(3) by providing an irrevocable break from the father’s violence toward them and their mother. Thus, we affirm the termination of Crowley’s parental rights.
Affirmed.
Vaught and Hixson, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
| Leopoldo D. Apodaca appeals fr'om the Union County Circuit Court’s revocation of his suspended sentence. On appeal, Apo-daca argues that the circuit court erred by admitting out-of-court statements that violated his constitutional right to confront a witness. We affirm.
On March 18, 2012, Apodaca pled guilty to aggravated cruelty to a dog, and the Union County Circuit Court sentenced him to twenty-four months’ imprisonment in the Arkansas Department of Correction (“ADC”) followed by a forty-eight-month suspended, sentence. On June 25, 2014, the State filed a petition to revoke Apoda-ca’s suspended sentence, alleging that he committed third-degree domestic battery against Amber Wallace on June 15, 2014. On July 24, 2014, the circuit court held a revocation hearing.
Wallace was not present and did not testify at the hearing. Detective Scott Harwell testified about his attempts to locate Wallace. Specifically, Harwell testified that he had called Wallace’s mother on several occasions, but Wallace’s mother informed him that she was not | ¡.speaking to her daughter and had not seen her since the June 15 incident. Harwell stated that he had visited two different residences where he heard Wallace might be located, but he did not find her at those addresses, He also stated that he had identified telephone numbers for Wallace, but the numbers had been disconnected.
Officer Robert Seely with the El Dorado Police Department testified that on June 15, 2014, he performed a traffic stop on Wallace’s brother for speeding. During the stop, Wallace’s brother informed Seely that he was speeding to meet his sister, who was injured.; Officer Seely then followed Wallace’s brother to Wallace’s location where he- observed. Wallace bleeding profusely: from her mouth and holding both sides of her face. Officer Seely further testified that Wallace had difficulty, talking because.of a swollen jaw.. Officer Seely asked Wallace what happened, and Wallace informed him that she had gotten into a physical altercation with her boyfriend, Apodaca.
During Officer Seely’s- testimony, Apo-daca’s defense counsel objected, asserting that the testimony violated his constitutional right to confront Wallace because Wallace was not present at the hearing and Apodaca could not cross-examine her. The circuit' court overruled Apodaca’s objection.
Apodaca then testified on his own behalf.' He ’átatéd that he did not have a physical altercation with Wallace on June 15, 2014! He noted that he had seen Wallace on that day and that they Rad gotten into a verbal disagreement, but'Wallace’s injuries had nothing to do Rwith him. Apodaca adinitted that he had a violent history with Wallace and that he was convicted of third-degree domestic battery of Wallace in 2011.
Following his testimony, the circuit court revoked Apodaca’s suspended sentence. The court, noted that it was
satisfied that the confrontation issue had been, addressed.. A good-faith effort ha[d] been made by the victim [sic] in this case, who happens to be the same victim of Mr. Apodaca’s from May 7, 2011. I’m satisfied with the information given to Officer Seely that the injuries suffered by ... that he observed and suffered by the victim Amber Wallace were delivered by this • defendant on June 15 of this year.
The court then sentenced Apodaca to fours years’ imprisonment, and Apodaca filed this timely appeaL
' On appeal, Apodaca argues that his constitutional right to confront Wallace was violated by the testimony of Officer Seely regarding what Wallace had told' him. Apodaca recognizes that such hearsay testimony is admissible in revocation hearings when the State shows that confrontation is undesirable or impracticable and when the court .considers the reliability of evidence that the State offers in place of live testimony. However, Apodaca asserts that the circuit court did not consider the reliability of Officer Seely’s testimony in this case.
A defendant’s right to confront his accusers during a revocation hearing is codified in Arkansas Code Annotated section 16-93-307(c)(l) (Supp. 2015). It requires the circuit court to make a finding of good cause before admitting such, testimony. Goforth v. State, 27 Ark.App. 150, 767 S.W.2d 537 (1989) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). This court has held that in a revocation proceeding, the circuit court must balance the right to confront I ¿witnesses against the grounds asserted by the State for not requiring confrontation. Id, Specifically, this court has held that the circuit court must first assess the explanation offered by the State for why confrontation is undesirable or impracticable. Id. A second factor to be considered is the reliability of the evidence that the government offers in place of live testimony. Id.
In Cannon v. State, this court held that the circuit court erred in considering the hearsay testimony of a police officer that violated the defendant’s right to confront a witness because “the trial court did not make a finding that the in-court witness’s testimony had some indicia of reliability.” Cannon v. State, 2010 Ark. App. 698, at 7, 379 S.W.3d 561, 565. This court noted that “[tjhis requirement does not impugn the officer’s integrity, or suggest that his testimony should be excluded, or that it is insufficient to support revocation; rather it is necessary to permit hearsay testimony that prevents the right of confrontation.” Id.
In this case, the circuit court stated in its ruling that it was “satisfied with the information given to Officer Seely that the injuries suffered by ... that he observed and suffered by the victim Amber Wallace were delivered by this defendant.” This statement suffices as a finding of reliability. Accordingly, the circuit court did not err in admitting the testimony, and we affirm the revocation.- •
Affirmed.
Gladwin, C.J., and Brown, J., agree.
. Apodaca’s counsel also objected to the testimony on hearsay grounds, and the court overruled the objection. However, Apodaca does not appeal the court’s ruling on the hearsay objection. | [
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WAYMOND M. BROWN, Judge. •
_JjA Pulaski County jury convicted appellant Brandon Westbrook of two counts of first-degree murder and one count of attempted ' first-degree murder. He was sentenced‘as a habitual offender to forty-five years’ imprisonment. Appellant argues on appeal that the trial court abused its discretion “in refusing to admit into éviderice expert medical testimony and layperson testimony proffered by appellant Westbrook to establish his controlled substance' induced psychosis as the cause for making false confessions on February 10, 2011, to have committed the first'degree murders and the attempted first degree murder at issue.” We affirm.
|2On February 3, 2011, the Little Rock Police Department received a call regarding subjects down at a house located at 2512 Summit Street. Upon entering the house, officers found Sterling Bolden lying face down, dead, in the hallway. Officers subsequently found the owner of the house, Robert McDonald (Popcorn), lying face up in the northeast bedroom suffering from multiple gunshot wounds. He was transported to UAMS where he died from his injuries. Rose Hill, Popcorn’s girlfriend,; was also found in the northeast bedroom with shots to her hand and shoulder. She was lying between the bed and the wall when officers made contact with her. She was transported to the hospital for treatment.
On February 10, 2011, appellant went to his neighbors’, the McCoys’, house.. He spoke with Ronald McCoy and informed Ronald that he had killed three people (two men and a woman) at a house on Summit Street. Police made contact with appellant later that day at the UAMS emergency room. At that time, Officer Rob Bell asked appellant why he was at the emergency room, to which he replied that he had “shot two people.” Appellant was placed in custody; however, before he could be removed from the hospital, his mother approached him and asked if he had killed those people. Appellant responded by shaking his head and saying “yeah.” This confession was witnessed by Sergeant Lela Folsom. Appellant was interviewed at the police station after he waived his right to remain silent. He subsequently confessed a fourth time during this interview, which was recorded. Appellant was charged with two counts of first-degree murder and one count of attempted first-degree murder.
| ¡Appellant filed a motion to suppress his custodial statement on November 15, 2011, alleging that the statement was not voluntarily made., The State, filed a response on November 21, 2011, asking that appellant’s motion be denied. The court denied appellant’s motion .to suppress following a hearing on August 29, 2012. In a pre-trial hearing held on December 17, 2013, the court addressed the State’s motion in li-mine to prevent appellant from putting on any evidence that he was arrested while at the psychiatric unit of UAMS because appellant’s defense was general denial, not a defense of not guilty by reason of mental disease or defect. The court agreed with the State that the evidence was irrelevant. The court also agreed with the State that evidence concerning the types of medication or medical treatment appellant had been given while at UAMS on February 10, 2011, was irrelevant and should not be admitted at appellant’s trial.
Appellant’s jury trial took place on July 23-24, 2014. At the pre-trial hearing on July 23, appellant made a motion asking the court to reconsider its decision to admit appellant’s custodial confession. Appellant argued that he could not make a knowing and intelligent- waiver of his rights because he was still under the influence.of “sherm” and medications given to him while at UAMS. The court declined to change its decision and upheld its earlier ruling on the issue. Appellant then sought to have Dr. Albert Kittrell testify as an expert that at the time appellant made the confessions, he was suffering from a substance-induced psychosis. Appellant argued that this testimony would shed light on his state of mind at the time the confessions were made and was, thus, relevant. He contended that this information 14went to the weight and credibility of his confession. He further argued that if he was not allowed to introduce this testimony, he had no defense. He cited to Crane v. Kentucky to support his position that he had a constitutional right to build a defense. The State argued that Dr. Kittrell should not be allowed to offer testimony concerning appellant’s alleged psychosis because that testimony would usurp the jury’s role. The court agreed and denied appellant’s motion. The State informed the court that it would not introduce or play the video of appellant’s confession during its case in chief. Appellant stated that- the video should be played to show how appellant was “bouncing around, not staying on tract, going off on various occasions.’’ The court agreed to let appellant play the video, without the volume, to the jury.
Rose Hill testified that she was at Popcorn’s house on February 3, 2011. ■ She stated that at some point, someone knocked on the bedroom window for Popcorn to get up. She said that she was lying in bed and that she heard Popcorn say, “Man, I told you I was tired, why y’all doing me like this?” She testified that she then heard between five and eight gunshots and saw Popcorn hit the floor. She stated that she “rolled over and hit the floor” and then “took the blanket and that’s when the heater.fell over [her].” She testified that she was shot in her hand and in her arm. She said that she laid on the side of the bed until she heard the police in the. room. Hill opined that the shooting took place between 2:00 p.m. and 3:00 p.m. She stated that she did not see the person who shot her and that she did not make any comments to the shooter.
IsJulie Voegele of the Pulaski' County Coroner’s Office testified that she was employed as a crime-scene specialist with the Little Rock Police Department on February 3, 2011. She stated that she went to the house on Summit Street to collect evidence. She said that a total of three 9mm spent shell casings were found in the bedroom and living room of the house.
Ronald McCoy testified that appellant came to his house on the morning of February 10, 2011, just as Ronald’s wife was cooking breakfast. He stated that he and appellant talked about music. Ronald said that at some point appellant stated that he had killed three people at a house on Summit Street and that he had used two guns. Ronald stated that appellant named Popcorn as one of the victims. He also stated that appellant told him that there was a female victim that appellant shot while she was lying on the floor. Ronald testified that at that point he was worried about his family’s safety and wanted to get appellant outside of the house. He said that he told appellant that he needed to eat breakfast and that appellant left. He stated that he subsequently contacted Sergeant Sloan and was advised to come to the police station. Ronald admitted that he was scared for himself :and his wife and that they left home and did not stay there that • night.
On cross-examination, Ronald stated that he and appellant'were not friends and that' appellant had never been to his home before that day. He said that his conversation with appellant on February 10, 2011, “evolved from music to shooting.” He acknowledged that his ’conversation with appellant was bizarre.-
| fiSholenna Denay McCoy, Ronald’s wife, testified that she was in the kitchen when appellant came to her home on February 10, 2011. She said that she had never met appellant before that day. She stated that she overheard the conversation appellant had with her husband and that when the topic became murder, she paid “even more attention.” She reiterated what Ronald had already testified to. She said that they called the police after appellant left and that they subsequently went to the police station to give a statement. She stated that they were afraid to go back home because appellant-was not in. custody.
On cross-examination, Sholenna stated that she remembered telling the officers that appellant was just rambling. However, she said that rambling was the word she used to describe that appellant was talking a lot. She stated that appellant also talked about stashing evidence in a trash can by “the old folks home.” She said that she did not know if appellant was bragging, but that he did not seem sorry.
Officer Bell stated that he made contact with appellant on February 10, 2011, while appellant was at the emergency room at UAMS. He stated that when, he asked appellant what he was doing in the hospital appellant replied that it was because he had “shot two people.” He testified that he then took appellant into custody.
Sergéant Folsom testified that she was also present when appellant was- taken into custody on February 10, 2011. She stated that as appellant was being escorted out of the emergency room, she heard appellant’s mother ask appellant “if' he had killed those people.” She testified that appellant nodded his head, and replied, “Yeah.”
| yDetective Tommy Hudson testified that he was one of the homicide detectives working the murders of Bolden and Popcorn. He stated that he was present when appellant was interviewed on February 10, 2011, by Det. Dewanna Phillips. He testified that the information provided by the McCoys that two guns had been used in the homicides was not contained in any police, file prior to the McCoys’ statements. He stated that the McCoys’ statements led to appellant’s arrest.
On cross-examination, Detective Hudson stated that although appellant admitted that he stashed the weapons “in a can by the old folks home,” he did not investigate that information. He also stated that he was unaware if any police officer investigated appellant’s claims.
Jennifer Floyd, a forensic examiner at the Arkansas State Crime Lab, testified that she received bullets from the bodies of Bolden and Popcorn. She stated that the bullets recovered were fired from two different caliber guns. She testified that Bolden was shot with a .22 caliber weapon and that Popcorn was shot with both a .22-caliber and a 9mm weapon. Floyd stated that she first made LRPD aware of her finding in May 2011.
On cross-examination, Floyd stated that she could not tell for sure how many guns had been used to fire the bullets that killed the victims.
Dr. Stephen A. .Erickson,, the deputy chief medical. examiner at. the Arkansas State Crime Lab, testified that he performed autopsies of the victims in this case. He stated that Popcorn was shot four times: behind his left ear, on the eyebrow, in the left lip, and in the abdomen. He said that'it was apparent that one of the bullets was larger than the others, vindicating that two different calibers of bullets were used. Dr. Erickson opined that Popcorn died of multiple gunshot wounds. He said that Bolden was shot twice: on the left temporal scalp and on the back of the head just right of the midline. Dr. Erickson opined that Bolden died of gunshot wounds tó the head.
On cross-examination, Dr. Erickson stated that he examined the victims’ bodies on February 4, 2011. He said that Officer Mark Knowles was present at the time of the examination. He also stated that Office Knowles knew about the two firearms the day of the examinations.
Appellant renewed all of- his motions once the State rested its case. Those motions were denied. Appellant then proffered the testimony of Dr. Kittrell. Dr. Kittrell-stated that he is a psychiatrist at the Arkansas State Hospital and that he teaches forensic psychiatry at UAMS. He stated that he performed a forensic evaluation of appellant. He testified as follows:
You are specifically asking-me about my opinion as to mentally .what was going on in Mr. Westbrook’s mind on February the 10th, 2011. I gave an opinion on the mental condition of the defendant at the time of-his statement to the police. Well, at the time of the statement, based on the video, he appealed to be disorganized in his speech. He made some rambling statements. It was difficult for me to follow. I think it was — I don’t want to presume, -but it seemed that the interviewing officers had to clarify certain things that he said.
My own personal, professional opinion of how he appeared, he appeared to be an individual who was psychotic and hyperactive manic at the time. As far as what causes that, those could be varied, but that’s the first impression from looking •at the video and even going back and reviewing the transcript of. his statement at the time.
I c,I interviewed Mr. Westbrook two times at the Pulaski County jail. In my evaluation I do not say if I could..never tell if he’s telling pie the truth,- or no. As a psychiatrist, we have no ability to discern the truth beyond what a layperson would.
He spoke with me about the drugs he was doing the- days before February, the 10th of 2011.
That helps supplement my opinion as to his mental condition on February . 10th, 20.11, when he gave his statement. It helps. If I can qualify that a little bit. He basically told me he knowingly used marijuana and did SO' frequently. He called it weed [which] had been laced with POP, sherm, as he clarified and referred to it.
Having observed or studied the videos from February the 8th from Maumelle and the statement on February 10th, that follows as to my opinion as to his mental condition. I think it’s consistent. If I had a known substance abuser who presented with that demeanor, made those types of statements and had no prior psychiatric treatment history, that would be the first and most likely cause of that presentation.
I am not saying he’s not mentally re-sponsiblé, he’s not mentally retarded, nothing like that.- My evaluation did not focus on that. My opinion in the report had nothing to do with that.
My opinion was that he had a substance induced psychosis. I could not-definitively state what that • substance was. And that is based on his not having any prior psychiatric treatment, the fact that he required treatment ■ to — or break it and he’s now' been off all medications for, what, close to two years, maybe more, and has not had any recurrence. The most likely explanation as to why he experienced a psychotic episode was that it was substance induced, even if you can’t-identify the substance.
Besides actually looking at the UAMS medical records, you also even showed me previous testimony of a Dr. Gregory Shane Hall. I am aware of Dr.'Hall and the screenings that they gave at UAMS. I’m aware that he had a drug screen at UAMS- and it was negative.
That does not in any way impact my opinion as to the psychosis. Well, if you consume an intoxicating substance it’ll show up in your system for a period of time. A substance induced psychosis can appear at — at some point after you start using the substances and remain with you for quite a period of time after all traces of the substances or substance has left your system. So it’s not in any way unusual for someone to have used a substance that caused a psychotic episode and by the time the drug screen took place for nothing to show up.
| ^Besides the statements that the defendant in the case file and on the video of the confession of February 10th, 2011, I had other reports regarding irrational claims' of violence. There were other reports from the defendant and also from a police report. Those were killing Martin Luther King, killing, he said, two Mexicans and as far as I know, there’s nothing that seems to support that in reality.
It is typical for a drug-induced psychosis for an individual to be delusional. It would not be outside the realm of consistency for that to happen.
On' cross-examination, Dr. Kittrell stated,
I didn’t meet with Mr. Westbrook until over three years after the alleged events occurred.
[With regard to whether] at least part of my opinion is based on claims that he’s making about what his family told him about what he said about killing' Dr. Martin Luther King and the two Mexicans, the part about killing Dr. Martin Luther King, that was something he told me that his family said. And it’s in. the police report about him having said that he killed two Mexicans.
This is three years later that he’s making some of these claims-to me. Three years later that I saw him.
It’s only delusional if there’s no facts to back up the veracity of what he’-s saying. If it’s reality, it’s not delusional. The fact that he may have been on drugs when he committed these crimes, that doesn’t mean that he wouldn’t necessarily be able to remember what happened, it would not necessarily mean that, no, it would not.
■ Appellant again asked the court to reconsider its ruling to allow certain testimony to be admitted during the trial. The court stood by its prior rulings.
Melissa Myhann, the forensic DNA supervisor at the Arkansas State Crime Lab, testified that cigarette butts found at the house were tested, and that appellant was excluded as a contributor to any DNA-on those cigarette butts.
lnOn cross-examination, Myhann testified that' no DNA profile was recovered from the shell casing found at the scene. She explained what the absence of DNA meant as far as whether or not someone was in a room:
It really depends on what kind of contact is made between items, how. ■ the sample’s collected, how it’s stored. Just because DNA — just because we don’t obtain the DNA profile from an item doesn’t mean it wasn’t' touched or handled by an individual, it just means that there wasn’t either enough there for us to obtain a profile or it may be a partial profile. We just don’t have enough to make a comparison. Simply stated,, just because there’s no DNA doesn’t mean somebody wasn’t there.
Detective Phillips testified that she was the lead detective in the homicide, which took place on February 3, 2011. She stated that she came into contact with appellant on February 10, 2011, at the emergency room at UAMS, She said that she conducted an interview of appellant on February 10 and that the ■ interview was recorded. She stated that an attempt was made to recover the evidence that appellant said was placed into trash cans but that they were unsuccessful in finding it.
On cross-examination, Detective Phillips stated that if the .evidence-had been placed where she was led to believe, it would have already been collected by the garbage men.
Appellant then introduced the proffered testimony of Marscelle Reed. Ms. Reed testified that she was a detention officer at the Pulaski County Regional Detention Facility. She stated that she knew appellant from working at the detention center and that she had no independent relationship with appellant. She stated in pertinent part,
|12I came into contact with him when he was originally arrested on these charges. That contact was in T Unit, the seg unit. I don’t know the exact date, I’m not sure. '
I do not know if it was the actual date that he was first arrested and brought to the Pulaski-County Detention Facility. ' I’m not really sure of the exact date. I’m just not really sure of the exact date, but I did see him when he first - came in. I think that waá it, the day, I believe that day or the next day.
I observed what happened. He was disoriented. He didn’t know who he was and he didn’t know who" I was. I was trying to orient him to where he was at. He didn’t -know.he was in the jail and he was calling me Brenda, he was calling me mother, mom and stuff. He didn’t really know where he was at. I don’t .have any independent experience like in .psychology or anything like that. But that’s my observations.
Appellant testified that he had" smoked PCP-laced marijuana around February 7, 2011. He stated that as a result, he'went around “acting crazy, so [his] momma tried to take [him] to the hospital.” He said that he knew the marijuana was laced because it “tasted funny.” Appellant' testified that he had no independent memory of talking to the McCoys, going to the hospital, or going to jail. Appellant stated that he learned about what happened February 3, 2011, on Summit Street from Corey Young (Smoke), who is now deceased. He said that he had also talked to his mother about the shooting. Appellant denied owning any firearms in February; he also denied having any reason to shoot the victims. Appellant stated that he did not kill the victims and that he did not shoot Hill. He said that he was trying to get some tires for his truck on February 3, 2011, and that he had been with his aunt the first part of that day. He further testified as follows:
Why I told people that I shot people was when I was laced, I went crazy, and all type of stuff. And things that I heard and — So when I was on drugs, went hollering like — So, in other words, I was just hollering out the side of my neck as you call it, I guess. Like words and stuff that I done heard and saying that I killed these people, that I killed Mexicans and I killed Martin Luther King, I killed my(cousin.
| ¶aAppellant testified on cross-examination as follows: .-1
I am not telling this jiihy that I did not say that I killed three people. I am not denying that the words that I told Mr. McCoy were that it was a two guys and a girl. I guess so. I don’t know if they said three people or two guys and a girl. I would have to see the motion to see what they said.
I am not denying that I said it to them. I am not denying that I said that it was a house on Summit. I am not denying that I said that one of them was Popcorn. I am not denying that I told them that there were two guns. I am not denying that I told them that the woman was wrapped in a bed sheet or a blanket. I am able to remember some things, but not others.
When I was talking about Mexicans and Martin Luther Kang, I am not telling the jury I remember that. [With regard to whether] I want the jury to believe that I said it, but I don’t remember saying it, it was in the police report. I don’t have any independent recollection of saying that.
I said that this marijuana cigarette was laced with PCP. I had not smoked PCP cigarettes before.
Appellant further testified that he did not remember the interview with the homicide detectives but that he had been shown a video recording of that interview. He acknowledged that the toxicology test taken at UAMS on February 10, 2011, was negative-for drugs.
On redirect, appellant stated, “I will look these people in the eye and tell them whether I shot Mr.‘ Bolden. I did not shoot Mr. Bolden. I did not shoot Mr. McDonald. I did not shoot Ms.' Hill.”
Andrea Madden, appellant’s mother, testified that she saw appellant on Gaines Street around 3:00 p.m. on February 3, 2011. She stated' that she went to the crime scene on'Summit Street and learned from “sorheone bn three [sic] street” what had happened. She' said |14that she relayed this information to appellant. She stated that appellant does not own any pistols-and that he is “truthful.”
On cross-examination, Madden stated that she loved appellant and that she would do everything she could .to protect him. She said that she told the police that she had gone to the crime scene and had given appellant information that she had learned. She testified that the police must have left this information out of her statement. She admitted that-she did not trust the police. Madden stated that she took appellant to the hospital on February 10, 2011. However, she denied asking him whether or not he had killed anyone. According to Madden, she asked Detective Phillips if appellant had committed • the crimes. She-stated'that she never told the police that she knew that appellant did not commit the shootings because she had seen him on Gaines Street’ on the date in question because she was in shock.
On redirect, Madden stated that she had talked to the police approximately three times. She said that just because she loved appellant did not mean that she was lying to the jury.
On recross-examination, Madden stated that the only information she had about Summit Street was that three people were killed. She said that she did not know what happened inside the house on Summit Street.
Joyce Dutcher, appellant’s aunt, testified that on February 3, 2011, appellant was on Gaines Street waiting for her around 3:00 p.m. so that she could give him a coupon for some tires.
On cross-examination, Dutcher stated that she met with appellant at 3:15 p.m. on February 3, 2011, on Gaines Street. According to Dutcher, she was running late because she | lswas supposed to meet appellant at 3:00 p.m. She admitted that she had not provided the police with this information.
On redirect, Dutcher contended that everything she testified to was the truth.
At the conclusion of the defense’s case, appellant renewed all previous motions. The court denied the motions.
Dr. Greg Hall testified on rebuttal that he performed a toxicology test on appellant on February 10, 2011, and that there were no drugs in appellant’s system, including PCP.
On cross-examination, Dr. Hall stated that he did not personally conduct the tests, but that he was referring to the results reported from the lab.
Detective Phillips testified on rebuttal that Madden would call her “pretty regular” about appellant’s case. She stated that she had known Madden for a long time. She denied that Madden had admitted to providing appellant with the information concerning the shooting on Summit Street, and said that if Madden had, that information would have been put in the case file.
On cross-examination, Detective Phillips stated that she and Madden grew up in the same neighborhood and that they talked on a regular basis. She said she did not. take notes if “somebody just wanted to talk.”
The court then allowed appellant to proffer the testimony of Dutcher and Madden. Dutcher stated that. she.had gone with Madden to take appellant to the State Hospital in February 2011. She:-said that they would not admit appellant until he had an assessment performed at UAMS. She testified that appellant
[ 1fiwas acting kind of erratic, part of the time, he seemed okay and we just wanted to take him — we felt like he needed to go to the State Hospital because he wasn’t himself that day. He just seemed kind of agitated. He would sometimes ask me about my son, too. My son was killed and it was messing with all of us. And he would sometimes say something about that. And his car was messing up and everything. He just seemed a bit agitated. [He was not acting like he normally does,] right.
Madden testified that appellant had begun -to act agitated on February 8, 2011, and had begun to say things that were not true. For example, she said that appellant began saying that he had been to prison for eight years, when, in fact, he had never been to prison. She stated that she ended up calling the police to her residence due to appellant’s behavior. She said that ap-péllant never said anything about killing someone on that day. She stated that appellant had accused hér of being “a director of the whole movie”' against him.
At the conclusion of all of the evidence, the jury received its instructions. The parties then presented closing arguments. The State contended that appellant was guilty of the murders of Bolden and Popcorn, as well as the attempted murder of Hill. The defense argued that appellant’s confessions were false and were the result of appellant being under the influence :of sherm. The jury deliberated and found appellant guilty of the charges against him. The jury recommended that appellant serve an aggregate term of forty-five years’ imprisonment. The court followed the jury’s recommendation and sentenced appellant to forty-five years in the Arkansas Department of Correction. The sentencing: order was entered on July 31, 2014. Appellant filed a timely notice of appeal on August 26, 2014. This appeal followed.
| ]-Appellant argues that the court abused its discretion in refusing to admit appellant’s proffered expert and lay testimony to establish that appellant’s substance-induced psychosis caused him to falsely confess to a crime that he did not commit. •
The decision to admit or exclude evidence is within the sound discretion of the trial c'ourt, and we will not-reverse the court’s decision regarding the,admission of evidence absent a manifest abuse of discretion. - The general test for .admissibility of expert testimony is whether the testimony will''aid the trier of fact in understanding •the evidence or in determining a fact in issue.- An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier of fact to understand and draw its own conclusions. Where the introduction of expert testimony would invade 'the"function of the jury or where 'it does not help the jury, the testimony is not admissible.
' Appellant argues that the proffered testimony was admissible because it was relevant. Under'Rule 403 of the Arkansas Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of having an unfair prejudicial impact on the jury, confusion of the issues, misleading the jury, or by considerations of undue |isdelay, waste of time, or needless presentation of cumulative evidence. Arkansas Rule of Evidence 704 governs expert opinions touching on the ultimate issue and provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Arkansas Rule of Evidence 702 pro-vides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.
Here, appellant conceded that he was not asserting an insanity defense. In light of his decision to not raise that defense, any testimony concerning his substance-induced psychosis was not relevant. Lay testimony about appellant’s behavior on the day of his confessions was likewise irrelevant. Therefore, the court did not abuse its discretion in preventing appellant from introducing this testimony.
Next, appellant contends that the proffered testimony was admissible because he had a fundamental constitutional right to present a defense that was central to his claim of innocence. He argues that his defense strategy was to persuade the jury that his confessions 119were false and that this strategy was hindered by the court’s rulings. He cites Crane v. Kentucky to support his contention.
In Crane, the United States Supreme Court held that, whether under the Due Process Clause of the Fourteenth Amendment or under the Compulsory Process or Confrontation Clauses of the Sixth Amendment, a criminal defendant has a right to a fair opportunity to present a defense. Appellant maintains that he was denied this right by the court’s rulings. This argument is without merit.
Appellant was able to put forth a defense through testimony and through the cross-examination of witnesses. Appellant took the stand in his own defense and stated that he falsely confessed to the crimes because he was under the influence of sherm. He was also able to show how he t presented. on February 10, 2011, by playing a video (the volume was not played before the jury) of his interview with homicide detectives.' Testimony concerning appellant’s alleged mental state and/or substance-induced psychosis was not relevant to his defense of innocence, and it would have usurped the jury’s function of being the judge of credibility. Despite appellant’s claims, he was able to put on his defense. Therefore, we hold that the court did not abuse its .discretion by preventing appellant from introducing this testimony.
Affirmed.
Gladwin, C.J., and Abramson, J., agree.
. This is the second time this case has been before us. We originally ordered a supplemental addendum due to deficiencies. Westbrook v. State, 2015 Ark. App. 635, 2015 WL 6742665.
. Sherm is PCP-laced marijuana.
. 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).
. Appellant returned a short time later, but no one answered the door.
. At this point in the testimony, the video of the interview was played for the jury. However, there was no audio of the interview, as per the court’s earlier ruling. A transcript of the video was subsequently proffered.
. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
. Id.
. Id.
. Id.
. (2015).
. (2015).
. (2015).
. See Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000).
. 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). | [
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PER CURIAM
_Jj_In 1990, appellant Michael W. Williams was found guilty by a jury of murder in the first degree, kidnapping, and aggravated assault. He was sentenced to consecutive terms of imprisonment of life, twenty years, and six years, respectively/ We affirmed. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).
In 2015, Williams, who is incarcerated at a unit of the Arkansas Department of Correction in Lincoln County, filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court. The petition was dismissed, and Williams brings this appeal.
A circuit court’s grant or denial of habeas relief will not be reversed-unless the court’s findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is clearly erroneous when, although there is- evidence to support it, the appellate court is Ijeft, after reviewing the entire evidence, with the definite and firm conviction that a mistake has been committed. Id..
Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16-112-103(a)(l) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Williams argued in the habeas proceeding that the judgment in his case was illegal on its face because the trial court lacked subject-matter jurisdiction to sentence him to life imprisonment for first-degree murder. As authority for the claim, he relied on our decision in Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533.
In Hale, the judgment provided that Hale was sentenced to life with the possibility of. parole after one-third of his sentence was served. We held that the trial court exceeded its statutory authority, to impose the sentence on the ground that the sentencing statute in effect at the time Hale committed the offense did not allow for parole when the defendant was sentenced to a life term. Hale, 2014 Ark. 405, at 5, 443 S.W.3d at, 535.
Williams attached to his habeas petition a copy of an interoffice memorandum from the records supervisor at the unit of the Arkansas Department of Correction where he is incarcerated that listed his sentence as “life with parole.” However, he also appended to lathe petition a copy of the judgment in his case that provides that he is sentenced to life imprisonment and that portion of the trial transcript wherein the court pronounced a sentence of life. Neither the judgment nor the transcript mentions parole.
First-degree murder was a Glass Y felony under Arkansas Code Annotated section 5-10-102(4)(c) (1987) when Williams committed that offense. In accordance with Arkansas Code Annotated section 5-4-401(a)(l) (1987), Williams was subject at that time to a sentence of riot less than ten years and not more than forty years, or life. Williams was not eligible for parole pursuant to Arkansas Code Annotated section 16-93-607(c)(l) and (d) (1987). The fact that an error was made on a document generated by the Records Supervisor did not render the judgment invalid on its face. The face of the judgment entered when Williams was convicted did not provide for parole as the judgment in Hale provided, and it was not illegal on its face. Accordingly, Hale did not apply.
With respect to Williams’s assertion that the court in his case lacked subject-matter jurisdiction, subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Bradley v. State, 2015 Ark. 144, at 6, 459 S.W.3d 302, 306. A court lacks subject-matter jurisdiction if it cannot hear a matter under any circumstances and is wholly incompetent to grant the relief sought. Id. Williams offered no grounds on which it could be said that the trial court lacked jurisdiction to hear his criminal case.
Because the circuit court did not err when it declined to grant a writ of habeas corpus on the allegations raised by Williams, we affirm the. court’s order.. We also find that |4Williams’s motion for appointment of counsel is moot because there is no -merit to the appeal,
Affirmed; motion moot.
. As of the date of this opinion, Williams remains incarcerated in Lincoln -County. . | [
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BART F. VIRDEN, Judge
11 Sengathit Phounsavath appeals the Sebastian County Circuit Court order revoking his suspended sentence. On January 30, 2008, he pleaded guilty to two charges of conspiracy to deliver methamphetamine, a class A felony, in two. cases: CR-2007-1021 and CR-2007-1022. Phounsavath was sentenced to five years in the Arkansas Department of Correction plus fifteen years’ suspended imposition of sentence on these charges. After a hearing on February 18, 2015, the circuit court found that Phounsavath had violated a condition of his suspension and sentenced him to five years in the Arkansas Department of Correction and to an additional suspended sentence of ten years, to run concurrently.
I. Facts-
At the hearing, Officer Joey Boyd of the Fort Smith Police Department testified that on August 27, 2014, he received information that a warrant had been issued for the arrest of | gCurtis ■ Posey- on narcotics charges and'that Posey would be traveling on 1-540 in a tan Honda CR-V driven’-by an Asian male. Officer Boyd testified that he was instructed to pull the vehicle over when he saw it. Officer Boyd recounted that he saw the likely vehicle, and, after witnessing the-driver execute an abrupt lane change without signaling, he turned on his blue lights to indicate that the driver should pull over. Officer Boyd testified that when he turned on his blue lights he observed the occupants'of the vehicle moving around in the ear “suspiciously” - as though they were “trying to retrieve something” and that it took “a long time” , for the driver to pull: over. When he reached the vehicle’s window Officer Boyd recognized Posey, and. he requested that the occupants exit the vehicle and stand in the grass by the interstate. Officer Boyd testified that he asked for consent to, search, and that Phounsavath, the driver, denied consent. Officer Boyd testified that he deployed the K-9 officer, who signaled that narcotics had been in the car. Officer Boyd testified that he conducted a search but did not find narcotics; instead, he found a .25-caliber pistol wrapped in a red bandana in the glove cqmpartment. Neither Posey nor Phounsavath admitted to owning the gun, and Officer Boyd testified that Phounsavath stated that he had not known the gun was in the car.
Officer Boyd ran the tags on the car, which showed that the car did not belong to Phounsavath. Officer Boyd' arrested Phounsavath for possession of-a firearm. The State petitioned the court to revoke Phounsavath’s suspended sentences on the following grounds: (1) he was a felon in possession of a firearm; (2) he had associated. with a known felon;. and (3) he had failed to appear at his revocation hearing. The State further alleged that laPhounsavath had failed to pay fines, costs, fees, and restitution related to the order from, two other criminal cases, CR-2004-1056 and CR-2005-1322, and that he should be held in contempt.
The circuit court found that Phounsa-vath was in possession of a firearm and thus in violation of the condition of his suspended sentences for' cases CR-2007-1021 and CR-2007-1022. The circuit court sentenced Phounsavath to five years in the Arkansas Department of Correction and to an additional suspended sentence of ten years, to run concurrently. Phounsavath filed a timely notice of appeal.
On appeal, Phounsavath argues that the evidence that he possessed the firearm was insufficient; therefore, the circuit court erred when it found that he had violated a condition of his suspended sentence. Phouiisavath argues that the circuit court should have, at most, held him in contempt for not paying his fines; costs, fees, and restitution from the prior two cases (CR-2004-1056 and CR-2005-1322). We disagree, and we affirm. !
II. Standard of Review and Applicable Law
Arkansas Code Annotated section 16-93-308(d) (Supp.2013) provides that, if a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension, the court may revoke the suspension at any time prior to the time it expires. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of a suspended sentence. Sherril v. State, 2014 Ark. App. 411, at 2-3, 439 S.W.3d 76, 78. The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. On appeal, the circuit court’s decision will not |4be reversed unless it is clearly against the preponderance of the. evidence. Anglin v. State, 98 Ark. App. 34, 36, 249 S.W.3d 836, 838 (2007). Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the circuit court’s superior position. Sherril, supra.
-Constructive possession may be implied when contraband is in the joint control of the accused and another. Webb v. State, 2015 Ark. App. 257, at 6-7, 460 S.W.3d 820, 824-25. Joint occupancy alone is insufficient to establish possession or joint possession; the State must also prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. There must be some other factor linkirtg the accused to the contraband, such as whether it is in plain view, whether it is found with the accused’s personal effects, whether it is found on the same side of a car seat where the accused, was sitting or in near proximity, and whether the accused is the owner of the automobile or' exercises dominion and control over it.' Id.
III. Analysis
After reviewing the testimony, we hold that the circuit court did not err in finding that Phounsavath constructively possessed the gun and thus violated a condition of his suspended sentence. Officer Boyd testified that Phounsavath was driving the vehicle, and the glove compartment where the gun was located was in near proximity to the driver’s seat where Phounsavath was sitting. Though Phoun-savath was not the owner of the vehicle, he was exercising dominion and control of the car at the time he was pulled over. Officer Boyd testified that when he turned on his patrol car’s blue lights, Phounsavath and the passenger | ..¡began moving around suspiciously and that at one point Phounsa-vath leaned over while driving. Officer Boyd also testified that it took a “long time” for Phounsavath to pull over to the side of the road. According to Officer Boyd’s testimony, the gun was found in the glove compartment, which was within close proximity to Phounsavath. As we have stated, evidence that is insufficient for a criminal conviction may be sufficient for the revocation of a suspended sentence. Sherril, supra., Though the evidence in the form of Officer Boyd’s testimony might fall short' of what would be necessary to convict Phounsavath of criminal charges, it is sufficient for the revocation of'his suspended sentence.
TV. Conclusion
Giving deference to the circuit court in determining the credibility of the witnesses, we hold that the circuit court did not clearly err in finding that Phounsavath was in constructive possession of the firearm, and that his possession of the firearm was a violation of a condition of his suspended sentence. Because we find, no error, we decline to address Phounsavath’s assertion that circuit. court should have held him in contempt for failure to pay fines and restitution.
Affirmed.
Kinard and Glover, JJ., agree. | [
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LARRY D. VAUGHT, Judge
| í David Adam Johnson appeals his . conviction by an, Independence County jury of two counts of sexual indecency with a child, a Class D felony. His sole point on appeal is that the trial court erred in denying his motion to suppress statements- he made ■ to police during a custodial interview. He argues that the statements were not .voluntary. We disagree and affirm.
Testimony at the suppression hearing revealed that Independence County Investigator Shane Meyer contacted Johnson by phone and asked him to come to the sheriffs office for an interview, which he did. Johnson was introduced to another investigator, Ms. Kalika Rogérs, who observed the entire interview. He was read his Miranda rights, he réad them, he indicated that he -understood those rights, and he Waived them. |¾Johnson admitted early in the interview that he knew he was there to discuss allegations against him related to inappropriate sexual conduct with his wife’s twelve-year-old niece. He initially denied having solicited sex from her but ultimately admitted that he approached her three times on the same evening and offered to perform oral sex on her.
Meyer told Johnson that the interview was part of a criminal investigation. He stated that he would turn Johnson’s statement over to the prosecutor. Johnson never indicated that he wanted to end the interview or invoke his rights. Meyer testified that Johnson did not appear to be confused or upset. Meyer testified that he did not coerce Johnson but that he did use tactics that involved accusing him of lying and appealing to his sense of honor and integrity as a member of the military. At the end of the interview, Meyer asked Johnson to write a statement, which he did on his own without help or input from either investigator.
Rogers also testified that Johnson had been read his rights, appeared to understand them, and waived them without coercion. Both investigators testified that Johnson never indicated that he had physical or mental impairments.
Johnson testified that he suffered from post-traumatic-stress disorder. He admitted that he never asked for an attorney or asked to end the interview but stated that he felt threatened by Meyer. He said he was afraid that Meyer would assault him if he did not tell Meyer what he wanted to hear. Johnson stated that he spent twenty minutes after the interview praying for forgiveness because he had lied in his confession but that he then wrote'a'statement again admitting the allegations.
After listening to the audio recording of the interview, the trial court denied Johnson’s motion to suppress, finding that Johnson had knowingly waived his Miranda rights | sof his own free will and had voluntarily participated in the interview. At trial, Johnson again objected to the admission of his oral and written statements. His objection was overruled, and the statements were admitted into evidence. Johnson was convicted and filed a timely notice of appeal.
In Grillot v. State, the Arkansas Supreme Court clarified the standard of review to be applied to our review of the denial of a defendant’s motion to suppress a custodial confession: “[T]he voluntariness of custodial statements is tested by viewing the totality of the circumstances.” 353 Ark. 294, 309, 107 S.W.3d 136, 144 (2003) (citing Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)); see also Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Likewise, in reviewing a trial court’s refusal to suppress a confession, we make an independent determination based on the totality of the circumstances. Id. (citing Cox v. State, 345 Ark. 391, 47 S.W.3d 244. (2001); Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999)). The ruling will be reversed, only if it is clearly against the preponderance of the evidence. Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977). Any conflict in the testimony , of different witnesses is for the trial court to resolve. Cox, 345 Ark. at 400, 47 S.W.3d at 250.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Jones v. State, 344 Ark. 682, 687, 42 S.W.3d 536, 540 (2001). In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id., 42 S.W.3d at 540.
14Johnson argues that his statements were involuntary because Meyer intimidated and coerced him. We disagree. He was advised of his Miranda rights, indicated that he understood them, provided no indication that he was confused or impaired, and waived those rights of his own free will. He admitted that the transcript of the interview was an accurate depiction of what had happened, and the transcript revealed no coercion. Both Meyer and Rogers testified that Meyer had not unduly coerced Johnson into making the statements. Meyer’s tactic of appealing to Johnson’s sense of integrity and honor as a member of the military was not coercive; neither were his accusations that Johnson was lying when Johnson denied the allegations. Both officers testified that Johnson provided no indication that he had any’mental or psychological impairments, and he appeared to be competent. ' Johnson stated during the interview that he was aware of the purpose of the interview. He was even advised that Meyer was going to the prosecutor with Johnson’s statements. Johnson gave an oral statement confessing to having solicited sex from a minor and then provided a matching written confession, which he wrote himself while alone in the interrogation'room. In this case, the totality of the circumstances indicates that Johnson freely and voluntarily waived his Miranda rights and gave both oral and written statements confess-^ ing to solicitation. We find no error and affirm.
Affirmed.
Harrison and Hixson, JJ., agree.
, Johnson was accused of soliciting sex from his wife’s twelve-year-óld niece. Because he has not challenged the sufficiency of the evidence supporting his conviction, a detailed recitation of the facts is unnecessary. | [
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RITA W. GRUBER, Judge
11Watson Chapel School District (the District) appeals from a circuit court’s order awarding one of its junior-high teachers, June Vilches, back pay for a thirty-nine-day leave of absence. The District contends that the evidence was insufficient to support the award; the circuit court improperly shifted, the burden of proof; and the court’s award of attorney’s fees was improper. We affirm the circuit court’s order. .
The incident giving rise to this case occurred on October 8, 2013, when Ms. Vilches noticed a student in the hall whom she did not recognize, and he was not wearing an identification card as required by school policy. Eyewitnesses to the event described the young man as between 6’2” and 6’5” tall and between 180 and 190 pounds; Ms. Vilches is about 5T” and weighs 115 pounds. Ms. Vilches confronted him and requested his identification. He became angry and confrontational, called her a b-A-A-A-⅜, and began “cussing” her, so she decided to “write him up.” Ms. Vilches testified that, at this point, he | ^pushed her into the wall by “charging” her, which he did two additional times. Several teachers heard the commotion and came out into the hall. Ms. Vilches testified that, when he pushed her into the wall, she could not speak and she hoped he was not going to hit her.
A male teacher, Clifton Lewis, eventually grabbed the student and escorted him away. Mr. Lewis testified that he did not see the student hit Ms. Vilches but that they were standing chest’ to chest and they were touching. He said that the student was “right in her face” and was “towering over her.” He testified' that the student was “real aggressive,” was standing like boxers do before the prefight, and was trying to intimidate Ms. Vilches. He said that Ms. Vilches did not treat the student any differently than she treats- other students and that she did not provoke him. The student just “flipped,” and Ms. Vilches appeared upset by the incident.
Another teacher, Yvette Hammond, also witnessed the event. She testified that the student was- aggressive toward Ms. Vilch-es, lunged forward while loudly threatening her, and briefly touched her. She said that Ms. Vilches was visibly shaken after the event.
Ms. Vilches testified that after three sleepless nights, - nightmares, and headaches, she went to her doctor, Tracy Phillips, on October 11, 2013. Her blood pressure was high, which was unusual for her. Dr. Phillips diagnosed Ms. Vilches with posttraumatic stress disorder (PTSD) and advised her not to return to work “at this time.” He told her to follow up with him in two weeks. He also prescribed medication for anxiety and a sleep aid.
- Ms. Vilches returned to work on January 15, 2014. She did not return to see Dr. Phillips until February 3, 2014. Dr. Phillips testified that Ms. Vilches had been his patient |3since 2001. He said that when she came in on October 11, 2013, she told him that she had been assaulted by a student at school. His notes reflected that she had a knot on her right arm, her blood pressure was elevated, her head and chest hurt, and she had blurred, vision. Her blood pressure that day was 162 over 106, and her pulse.measured 112.. Ms. Vilches did not have a history of high blood pressure. He noted that she was “prétty shaken” and was not her “normal self.” He diagnosed her with PTSD, which, he testified, can affect people in different ways. He said that, typically, he would schedule a follow-up exam to check on a patient after such a diagnosis. He said that his opinion “within a reasonable degree of medical certainty” was that it was appropriate for Ms. Vilches to be off work from October 11, 2013, through January 15, 2014, and that she “needed to be off work.” On cross-examination, he admitted that he could not. definitively say Ms. Vilches had symptoms of PTSD any time after October 11, 2013, when he met with her..
After she returned to work, Ms. Vilches sought payment from the District for the thirty-nine days she was off work pursuant to Ark.Code Ann. § 6-17-1209 (Supp. 2013). The District’s superintendent refused her request, and the school board also vot'ed to' deny it. She filed a complaint on March 13, 2014, alleging that the District had violated Ark.Code Ann. § 6-17-1209 and had breachéd its employment contract with her by refusing to pay her for the thirty-nine-day leave of absence. She requested damages in the amount of the back pay for the thirty-nine-day leave and for her costs and attorney’s fees pursuant to Ark.Code Ann. § 16-22-308 (Repl. 1999).
At the end of a bench trial, the circuit court ruled from the bench, finding that an Dassault did take place, stating that it found the testimony of Ms. Vilches, Ms. Hammond, and Mr. Lewis credible. Without determining1 that Ms. Vilches was grabbed or pushed, the court found that she suffered personal injury as a result of the assault. The court credited Dr. Phillips’s diagnosis of PTSD noting that this type of injury had been recognized by our court in Moore v. Pulaski County Special School District, 73 Ark. App. 366, 43 S.W.3d 204 (2001), as a “personal injury” under the statute — arid further considering Dr. Phillips’s notes regarding Ms. Vilches’s elevated blood pressure, painful chest and head, and blurred vision. Finally, the court noted that there was no medical testimony to suggest that Ms. Vilches had not been injured due to the assault. After announcing its findings, the court stated that the case was a “dual case” including a private statutory cause of action-in addition to a breach-of-contract issue because section 6-17-1209 is “part of every teacher contract.” Thus, the court stated that Ms. Vilches would be entitled to attorney’s fees and costs and requested her to submit those in an itemized statement.
On April 28, 2015, the circuit court entered an order awarding Ms. Vilches damages for the thirty-nine-day absence, granting a setoff to the District, for sick days for which she had been paid and ordering the sick days reinstated, and awarding her attorney’s fees and costs. The order tracked the court’s oral ruling, finding that Ms. Vilches had met her burden of , proving that an assault had occurred against her in the course of her employment and that she had sustained ⅝ personal injury caused by the assault, noting Dr. Phillips’s diagnosis of PTSD. The court then stated that the case was a private cause of action pursuant, to Ark. Code Ann. § 6-17-1209 but awarded attorney’s fees, stating that it was also a breach-ofjcontractg case by virtue of the fact that the District was required to incorporate the statute into its written personnel policies. Taking into account the setoff, the court awarded damages in the amount of $6649.01 and attorney’s fees of $9160,00.
•A week after the order was entered, the District filed an objection to the request for attorney’s fees, stating that the statement for legal services submitted by Ms. Vilches’s counsel was excessive in light of the amount of damages received by Ms. Vilches; that none of the tasks reflected a one-tenth-hour entry; and that the requested hourly rate was not supported by evidence indicating that it was an appropriate rate, Ms. Vilches responded to the objection, but the court did not enter any additional orders. The District filed this appeal.
In bench trials, the standard of review on appeal is whether the circuit, court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a) (2015); Optical Partners, Inc. v. Dang, 2011 Ark. 156, at 14, 381 S.W.3d 46, 55. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 361, 974 S.W.2d 464, 467 (1998).
Por its''first point on appeal, -the District contends that Ms, Vilches did not provide sufficient proof to ' support her claim.' Specifically, it argues that there must be more medical proof to support a personal-injury claim than an initial diagnosis of PTSD and a two-week-off-work slip. The District also argues that the PTSD diagnosis was based on a characterization of the event that wasn’t true — that is, an incident in which Ms. Vilches was grabbed or punched. Before we address the District’s argument, we turn to the relevant | (¡statute:
(a)(1)(A) Whenever a schoolteacher is absent from his or her duties in a public school as a result of personal injury caused by either an assault or a criminal act committed against the teacher in the course of his or her employment, the teacher shall be granted a leave of absence from school with' full pay for Up to one (1) year from the date of the injury.
, '(B) Teachers who suffer personal injury‘while intervening in student fights, restraining' a student, or protecting a "student from harm shall be considered to be injured as a result of an assault or a criminal act.
(2) The leave of , absence for personal injury from an assault or a criminal act shall not be charged to the teacher’s sick lpave authorized under this subchapter.
(b) The board of directors of each school district shall adopt written policies for the implementation of this section and incorporate them as part of the written personnel policies of the school district;
Ark.Code Ann. § 6-17-1209.
The relevant part of the statute provides that a schoolteacher who is absent from her duties “as a result of personal injury caused by either an assault or a criminal act committed against the teacher in the course of his or her employment” shall be granted a leave of absence from school with full pay. The statute does not define personal injury nor does it provide the type of proof required to prove such an injury. In Moore, we made clear that the injury does not need to be physical for the statute to apply and specifically affirmed an award for PTSD. Moore, 73 Ark. App. at 373, 43 S.W.3d at 209. Although there was evidence that the claimant in that case had been diagnosed with PTSD by a physician as a result of the incident, we also stated that" the claimant’s testimony — that she developed “hypertension that caused her to ‘pass out,’ in addition to depression, post-traumatic stress disorder, anxiety, and mental confusion” — constituted evidence to establish the injury: “Given appellant’s evidence |7of the effects that this incident had on her, we have no hesitation in holding that she sustained a personal injury within the meaning of section 6-17-1209.” Id.
In this ease, Dr. Phillips testified that he had diagnosed Ms. Vilches with PTSD as a result of the incident. Contrary to the District’s argument, he did not state in his notes or in his testimony that the diagnosis was based on Ms. Vilches’s having been either grabbed or pushed by the student. The diagnosis was based on her elevated blood pressure, the pain she described in her head and chest, her blurred vision, and the fact that she was not her “normal self.” Moreover,' the court heard all of the testimony, specifically did not find that Ms. Vilches had been grabbed or pushed, and found that she had been assaulted and suffered personal injury, PTSD, because of the assault. We do not make credibility findings in this court, and we hold that the circuit court’s findings are not clearly erroneous.
For its next argument, the District claims that the circuit court improperly shifted the burden of proof to it' to prove that Ms, Vilches could work. ■ It bases this argument on the court’s statement from the bench that there was “no other medical testimony from another doctor or medical-care provider to show that Ms. Vilches was not injured due to the assault” and its similar • statement in its order that there was no “credible evidence” that she should have returned to work earlier than she did. First, the District: did not raise this argument to the circuit court, and we generally do not address arguments raised for the first time on appeal. Dixon v. State, 2011 Ark. 450, at 16, 385 S.W.3d 164,175. Furthermore, we do not view these statements by the court as “burden shifting:” The court thoroughly reviewed the testimony, explained why it determined that Ms. Vilches thad met her burden of proving that Isshe.had suffered an assault and a personal injury .caused by the assault, and observed that .no.evidence had been introduced to support the District’s position.
Finally, the District contends on appeal that the circuit court erred in awarding attorney’s fees. First, the District argues that this case was not a. contract case but a statutory case, and.thus fees are not recoverable under Ark.Code Ann. § 16-22-308, which- authorizes fees- in contract cases. Second, the District argues that fees were not requested by motion as required pursuant to Ark. R. Civ. P. 54(e). Finally, the District, argues that the fees were excessive .because they are greater than the amount awarded in damages to Ms. Vilch- es and that no evidence supports the hourly rate.
In her complaint, Ms. Vilches pléáded a statutory action and a breach-of-contract áction and requested attorney’s fees pursuant to Ark.Code Ann. § 16-22-308. After testimony was concluded at the trial, the circuit judge stated that the case was both a statutory and a contract case and asked Ms. Vilches to provide an itemized statement, of her attorney’s fees for recovery. This information is not in the record, but the statement was provided, the court awarded attorney’s fees, and the District filed an objection to those fees. The District did not, however, object on the basis that the case was not primarily a contract case and -thus that fees were not recoverable. It also did not object to the absence of a motion pursuant to Rule 54(e). Arguments not raised at trial will not be addressed for the first time on appeal, Dixon, 2011 Ark, 450, at 16, 385 S.W.3d at 175, and the , basis for objection on appeal must be the same basis for objection as at the trial court level. Threadgill v. State, 347 Ark. 986, 990, 69 S.W.3d 423, 426 (2002).
9The District did properly raise its objection to the* amount of fees, however. A circuit court is not required to award attorney’s fees'and, because of the judge’s intimate acquaintance with the trial proceedings and the quality of the service rendered by the. prevailing party’s counsel, the circuit judge has a superior perspective to determine whether to award fees. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). The decision to award attorney’s fees and the amount to award is discretionary and will be reversed only if the appellant can demonstrate that the circuit court abused its considerable discretion. Harrill & Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, at 9, 424 S.W.3d 272, 277. In this case, while the fees were greater than the damages awarded, the District has not provided any evidence that they are excessive in light of the work required to pursue and prosecute this case. Nor has it offered any evidence that the hourly rate charged is outside the normal range in the area for attorneys of the same experience. Consequently, we hold that the circuit court did not abuse its considerable discretion and affirm its decision.
Affirmed.
Whiteaker and Hoofman, JJ., agree. | [
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DAVID M. GLOVER, Judge
11 Melissa Johnson appeals the termination of her parental rights to L.R. and R.R. She contends the trial court failed to present'd “qualified- expert witness” pursuant to 25 U.S.C. section 1912(f) (Indian Child Welfare Act) and therefore failed to show that return, of custody of the children to her was likely to result in serious emotional or physical damage. We affirm.
The facts of the case are essentially undisputed and can be briefly stated. Melissa' was arrested on drug charges, and, eventually, her three minor children, L.R., R.R., and E.R., were taken into custody. ' However, only her rights to L.R. and R.R. are at issue here. The Indian Child Welfare Act was determined to be applicable based on Melissa’s claim to membership in the Cherokee. Nation of Oklahoma.
By order entered on February 2, 2014, all three children were adjudicated dependent-neglected. In April 2014,. the Cherokee Nation began attending hearings via a [¿representative, Tád Tehee. . The children’s grandmother was also allowed to intervene in the. case; The-Arkansas: Department of Human Services (DHS) attempted a trial return of custody, to Melissa; however, the children were again removed in September 2014 when L.R. was discovered playing near the road at the apartment complex where they lived. Melissa was inside, asleep, and' did not know where L.R. was. Her drug screen was positive for methamphetamine and THC. DHS subsequently filed a petition to terminate Melissa’s parental rights. Tehee represented the Cherokee Nation at the April 30, 2015 termination hearing. At that time, Melissa was incarcerated but was present at the hearing.
DHS presented two witnesses in support of its petition to terminate Melissa’s- parental rights, Jamie White and Erica Eneeks, two DHS employees who had worked with the family during this case. Jamie White testified she had been the caseworker on the case since February 28, 2014. She reviewed the history of the case and the services provided and offered her assessment that no progress had been made to resolve the issues that brought the children into DHS care. She opined the children would be at risk of serious harm if they were returned home. She also testified the children were adoptable.
Erica Eneeks, the current supervisor on the case, testified she was the caseworker from December 2013,until February. 28, 2014. She explained that DHS had offered services to-Melissa, and it was her initial completion of some of the services that had led -to the trial home placement. She reiterated the - circumstances leading to the second return of custody to DHS in September 2014 and stated Melissa did not complete the second referral for drug-and-alcohol assessment after that incident. She also explained that Melissa had lost contact Iswith DHS prior to her incarceration and that her lack of contact and support for the children had continued during her incarceration.
Tehee offered his recommendation to the trial court.- He explained it was the Nation’s opinion that DHS made efforts to reunify the family and provided services to put the children back in the home, but those services proved unsuccessful, and one of the children was left to wander alone in a parking lot while Melissa tested positive for meth. He expressed- the Nation’s opinion that termination should be granted, that the children were adoptable, and that return of the children to either parent would result in emotional and physical damage to the children.
At no time during the hearing did Melissa attempt to voir dire the witnesses or raise any objection that DHS had failed to present a qualified expert witness pursuant to 25 U.S.C. section 1912(f): Following the hearing, both parents’ rights 'to L.R. and R.R. were terminated by order entered on June 29, 2015, and this appeal by only Melissa followed.
In her appeal, Melissa characterizes her argument as one challenging the sufficiency of the evidence to support termination, contending that DHS was required to present “expert testimony” in proving its case under the ICWA, that DHS did not present any expert witnesses, and that consequently it failed to present sufficient evidence to support the termination of parental rights.' We have concluded that the issue she- raises on appeal is not truly a sufficiency argument, that it should have been argued below, and that because it was not, it was not properly preserved for our review.
|4Melissa acknowledges she raised no objection below that these witnesses had not been qualified as experts, but contends she was not required to because the Indian Child Welfare Act specifies that
[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 U.S.C. § 1912(f) (emphasis added). She argues DHS failed to present the required evidence under the Act because it failed to present the necessary expert witness, making it a sufficiency-of-the-evidence challenge rather than an evidentiary challenge. While the argument is clever and, if accepted, would bypass the preservation problems, we are not persuaded.
In Philpott v. Arkansas Department of Human Services, 2011 Ark. App. 572, at 6, 2011WL 4477860, we explained
On appeal, appellant argues that the DHS case worker who testified at the termination hearing was not a “qualified expert witness” under the ICWA. He failed to make this argument to the trial court, however, and it is well settled that arguments made for the first time on appeal will not be considered. Appellant’s counsel ' neither objected to McKay’s testimony nor did he voir dire McKay regarding her qualifications as an expert under the ICWA. As such, the present arguments were never presented to the trial court, and the trial court had no opportunity to rule on them.
(Citations omitted and emphasis added.)
Melissa attempts to distinguish Philpott from the instant case by noting that the witness in Philpott had been “qualified as an expert witness.” While the Philpott opinion notes that the trial court questioned the witness and that the witness testified she had been a caseworker for almost seventeen years and had previously testified' in termination proceedings involving | Jndian children, it is- not at all clear from the opinion that the trial -court specifically found the witness to be an expert. We are not convinced of the distinction Melissa attempts to draw between the instant situation and that presented in Philpott. Moreover, even if a distinction exists, it is one without any significant dif ference, and,-as in Philpott, the argument raised in this appeal should have been presented to the trial court if it was to be preserved for our review on appeal.
Affirmed.
Kinard, J., agrees.
Virden, J., concurs. | [
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CLIFF HOOFMAN, Judge
| Appellant George Wheatley d/b/a Velocity Sports Academy (Wheatley) appeals from the Benton County Circuit Court’s March 30, 2015 order for immediate possession and June 4, 2015 judgment in favor of appellee Dixie Mall 2003, LLC (Dixie). On appeal, appellant contends that (1) the trial court erred by issuing the writ of possession; (2) the trial court erred by not allowing appellant to introduce evidence as to the cost and types of improvements he had made to appellee’s building between the time he signed the lease and the time he opened for business; and (3) the trial court’s judgment awarding costs and attorney’s fees to appellee should be reversed automatically'if the court reverses its order for immediate possession. We affirm,
On February 10, 2015, appellee filed a complaint for unlawful detainer and writ of possession, alleging that appellant had violated the permitted-use provision of the lease by offering strength-and-conditioning classes, fitness-training classes, and .exercise machines on lathe premises. Appellee alleged that it served appellant with the first written notice of violation on December 18, 2014 (“first notice”), and a second written notice of violation on January 27, 2015 (“second notice”). After appellant failed to comply with the notices, appellee alleged that it served appellant with a termination notice (“termination notice”) on February 6, 2015. However, appellant refused to surrender possession. Therefore, appellee alleged in the complaint that appellant was in unlawful possession. Appellant filed an answer and objection to the writ of possession on February 13, 2015. In his answer, appellant generally denied that the activities violated the permitted-use provision of the lease. Additionally, appellant affirmatively pleaded that appel-lee’s claims were barred by “waiver, lach-es, estoppel, unclean hands, and material breach of contract by [appellee.]”
A trial was held on February 26, 2015. At trial, Frank Cooper, the general manager at the Frisco Station Mall, testified that appellant sought to lease a space at the mall to open his batting-cage business and agility classes for team sports. Cooper explained that appellant failed to mention that he also wanted to offer strength- and-conditioning classes, Zumba classes, and exercise- equipment. Another tenant in the mall, Planet Fitness, was already offering health, .weight-loss, and fitness classes. Additionally, Planet Fitness’s lease limited the activities of other tenants. Therefore, Cooper testified that section 1.1(h) of the lease permitted appellant to use the premises only for a batting-cage area and for speed or agility training. Furthermore, the provision specifically prohibited appellant from using free weights or exercise machines or from selling memberships for speed and agility training. He further testified that after appellant had placed rowing machines on the premises and offered adult |sworkout and fitness classes, Planet Fitness filed a lawsuit against appellee based on appellant’s violation of the permitted-use provision.
Cooper testified that the notices of violation were sent to'appellant’s home address, pursuant to the terms of the lease. The first notice was sent on December 18, 2014, after Planet Fitness complained that appellant was offering Zumba classes. After receiving the first notice, appellant agreed in a conversation that hé would stop the Zumba classes. Cooper testified that he received confirmation that a second notice was delivered on January 29, 2015, after Planet Fitness had filed a lawsuit against appellee for appellant’s violation of the permitted-use provision. Specifically, Planet Fitness alleged that appellant offered rowing machines and adult-workout classes. After appellant initially failed to respond to the second notice, Cooper testified that he contacted appellant. Appellant told Cooper that'he did not receive the second notice because he had moved and was no longer living at the address listed in the lease. A series of emails and communications subsequently took place regarding the second notice, during which time appellant received a copy of the second notice. Cooper further testified that he visited the premises around 2:30 p.m. on February 4,2015, and observed that the rowing machines were still available in the training area; therefore,'-a termination notice dated February 6, 2015,' was delivered. Additionally, Cooper testified that appellant was still offering strength-and-conditioning classes, workout classes, and fitness classes for adults, in violation of the lease.
On cross-examination, Cooper admitted that section 3.1 of -the lease permitted the landlord to recapture the premises and terminate the lease upon thirty days’ notice to the [¿tenant if the tenant changed its permitted use without the landlord’s prior written consent. However, Cooper contended that sections 3.1 and 1.1 both applied. Cooper explained that, because appellant failed to comply with the permitted-use provision within twenty-four hours despite two notices of violation, he proceeded properly under section 1.1(h) because appellant never made a prior request to change his permitted use for section 3.1 to apply under these circumstances.
After appellant’s counsel questioned Cooper regarding the improvements made to the premises, appellee’s counsel objected on the basis of relevance. Appellant’s counsel argued that the testimony was relevant because' appellee “watched Mr. Wheatley repair their building at his expense not five months ago, and they’re now trying to kick him out and keep the benefits of those repairs.” The trial court sustained1 the' objection, finding that the testimony had “nothing to do "with permitted use.” Appellant proffered that he spent about $50,000 on leasehold improvements between the time he signed the lease and thé time he opened the business.
Appellant testified that he was the owner of Velocity Sports Academy and that he had signed the lease with Dixie in July 2014. He explained that his business consisted of batting cages and speed and agility training. However, he explained that the only way to increase' speed and agility is through strength conditioning. He admitted that his business used a rowing machine but contended that it did not violate the permitted use because it did not have a motor or a plug. Appellant testified that he received the first notice on December 18,' 2014, and that the notice cited Zumba classes as a violation of the permitted use.. He testified |5that after receiving the first noticé, he stopped offering Zumba classes. Although appellant moved and had his mail forwarded, he admitted at trial that it was his fault that he did not initially receive the second notice. He further indicated that he had received a copy of the second notice on February 3, 2015, but that he did not understand how he was in violation. Therefore, he testified that he took a guess and had the rowing machines removed on February 4, 2015, at approximately 3:00 p.m. or 4:00 p.m. However, after further cross-examination, he explained that the rowing machines, >vere still on the premises but that they had been moved into the back hallway. Additionally, he admitted that the business still offered strength- and-conditioning classes and fitness-training classes. . Appellant further testified that he had never requested to change the lease prior to his February 3, 2015 statement that he “would like to look at some adjustments in the lease,” which was after he had received the second-notice violation.. He stated that a termination notice was subsequently posted on the door on February. 6, 2015, and that appellee filed a lawsuit on February 10, 2015, without giving him thirty days’ prior notice.
At the conclusion of the trial, appellee’s counsel orally argued that section 1.1(h) applied because it was the. more specific provision of the. lease and that section 3.1 did not apply because appellant. did not request a change in the permitted use until after the second notice.. Appellant’s counsel, on the other hand, argued that section 3.1 applied and that the landlord had the right to .terminate. the lease only after thirty days’ notice to the'tenant. After hearing all oral argument, the trial court orally found .that there had been a breach of the intended use and that the appropriate notices had been given.
| fA written order for immediate possession was filed on March 30, 2015. In that order, the trial court found that appellee was entitled to immediate, sole, and exclusive possession of the premises and ordered the clerk of court to issue a writ of possession in favor of appellee. After a subsequent motion for attorney’s fees and costs and a hearing, the trial court awarded appellee $8,473.50 in attorney’s fees and $230 in costs. A timely notice of appeal and amended' notice of appeal were filed from these orders, and this appeal followed.
. On appeal, appellant first contends that the trial court erred by issuing the writ, of possession. Specifically, appellant.argu.es that he' did not violate the permitted-use clause of the lease, that appellee- waived any right to terminate the lease and evict him, and that appellee failed to comply with the notice requirements of section 3.1 of the lease prior to filing-suit. We disagree.
Our standard of review on appeal from a bench trial is not whether there was substantial evidence to support the finding of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence... See Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007).. A finding is clearly erroneous when, although there is evidence to support it, the. reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are within the province of the fact-finder. Id.
Appellant first argues that he did not violate the lease because the phrases “speed or agility training” and “exercise machines” were ambiguous and that any ambiguity should be construed against ap-pellee. He alleges that speed-and-agility training go hand in hand with |7strength- and-conditioning training. Furthermore, he alleges that the rowing machines that were placed in the business did not have motors and therefore did not violate the lease.
Section 1.1(h), regarding the permitted use of the premises, specifically provided,
Tenant shall use the Premises for a batting cage area and speed or agility training (provided, -however, Tenant shall not use free weights or exercise machines, on the Premises, or sell memberships for such speed and agility training), and for the limited incidental retail sale ...
Landlord shall notify Tenant in writing of any alleged Permitted’ Use violation, and Tenant shall have twenty-four (24) hours after receiving such written notice from Landlord to cure the violation. If Tenant fails to cure such violation within such twenty-four (24) hour period, then a) Landlord may charge Tenant a penalty equal to Five Hundred Dollars ($500.00) for each day of the violation, and b) Landlord shall have the right to terminate this Lease upon delivery of a written termination notice (the “Termination Notice”) to Tenant, and e) Tenant shall vacate the Premises within seventy-two (72) hours after its receipt of the Termination Notice.
Appellee introduced sufficient proof to establish that appellant was offering fitness classes and providing exercise machines in violation of the cited' provision in the lease. Section 1.1(h) specifically and unambiguously prohibited the use of exercise machines without any exception, and appellant admitted at trial that he had provided rowing machines to his customers until at least February 4, 2015, in the late afternoon, which was more than twenty-four hours after the second notice. Additionally, appellant admitted at trial that he continued to offer strength-and-conditioning classes and fitness-training classes, which clearly were not permitted under the-lease. Therefore, the trial court did not-clearly err in finding that appellant was in violation of the permitted-use provision contained in the lease. ■
Next, appellant asserts on appeal that appellee waived any right to terminate the lease because appellee promoted and advertised appellant’s business, including images of adult ^athletes using free weights.- - Based on our review of the abstract,- we conclude that we cannot consider this issue on appeal. Although appellant may have listed “waiver” along with a number of other affirmative defenses in his answer, we have held that something more than a mere assertion of an argument , in the pleadings is required to preserve an issue for appellate review. Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). Additionally, appellant’s argument was not well developed, and we have held that we will not consider arguments without convincing argument or citations to authority. Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 291 S.W.3d 179 (2009). Therefore, appellee correctly argues that appellant was required to raise before the circuit court the precise defenses and arguments to be relied on in his appeal to ensure that there is , an opportunity for them to be fully developed. See Housley v. Hensley, 100 Ark. App. 118, 265 S.W.3d 136 (2007). A party may not wait until the outcome of a case to assert a legal argument, nor can he change the grounds for an objection on appeal but is bound by the scope and nature of the objections presented at trial. Id.
Appellant additionally argues that appellee, failed to comply with the notice requirements of section 3.1 prior to filing suit. Specifically, appellant argues that section 3.1 of the lease required appellee to provide thirty days’ notice prior to terminating the lease, and appellee failed to do so. Appellee contends that appellant misconstrues that provision of the lease,-that, section 1.1(h) applied, and that appellee complied with the notice requirements of section 1.1(h). We agree with appellee.
Section 3.1 specifically provides,
19 Use of Premises. Tenant (and Tenant’s assignee or sublessee) shall use the Premises under the Trade Name and solely for the Permitted Use described in Section 1.1(h) and for no -other use or purpose without Landlord’s express written consent, which consent may be granted or withheld in Landlord’s sole and subjective discretion, including, without limitation, for the purposes of achieving Landlord’s desired tenant mix. Tenant will not use the Premises in such a way as to causé unreasonable depreciation. Landlord shall have the right, to be exercised by giving written notice to Tenant within ten (10) business days after receipt of Tenant’s request, to change its Permitted Use or at any time if Tenant changes its Permitted Use ■without Landlord’s prior written consent to recapture the Premises and terminate the Lease upon thirty (30) days’ notice to Tenant; provided, however, subject to the provisions of Section 1.1(h), that if Tenant shall terminate the unauthorized use within five (5) days twenty-four (24) hours after receipt of notice from Landlord, Landlord’s right to recapture the Premises! ] terminate the Lease is null and void.
(Emphasis added.)
Despite appellant’s argument to the contrary, section 3.1 was subject to section 1.1(h) and clearly applied in circumstances where the tenant had first requested a change to the tenant’s permitted use. Here, appellant admitted that he did not request a change to the lease until after appellee had already complied with section 1.1(h) and delivered the second notice. Thus, because section 3.1 was inapplicable and because appellee complied completely with section 1.1(h), as outlined above, the trial court did not err in finding that appel-lee had complied with the applicable notice provisions to terminate appellant’s lease. Accordingly, we affirm on this issue.
Next, appellant contends that the trial court erred by not allowing him to introduce evidence as to the cost and types of improvements he had made to appellee’s building between the time he signed the lease and the time he opened for business. Appellee argues that the circuit court, correctly excluded this evidence because it was irrelevant and therefore inadmissible, and we agree.
| inOur standard of review for evi-dentiary rulings is well settled. The trial court makes the determination as to the admissibility of testimony. Woods v. Woods, 2013 Ark. App. 448, 2013 WL 4558126. The trial court must determine the relevancy, competency, and probative value of the testimony. Id. The admissibility of testimony is within the trial court’s discretion, and the trial court will not be reversed absent an abuse of that discretion. Id. Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401 (2015). It is enough if the evidence reasonably shows that a fact is slightly more probable than it would appear without the evidence. Bishop v. Tariq, Inc., 2011 Ark. App. 445, 384 S.W.3d 659.
Appellant failed to provide this court with a sufficient argument as to why the testimony -regarding the leasehold improvements was relevant to the trial court’s decision that would support reversal on appeal. The fact that appellant made r expenditures to improve the leased space does not have any- tendency to make the fact that appellee was entitled to possession under a specific provision of the lease more or less probable. Therefore, the testimony was irrelevant, and the trial court did not abuse its discretion in ruling that the evidence was inadmissible.
finally, appellant contends that the trial court’s judgment awarding costs and attorney’s fees to appellee should be reversed automatically if the court reverses its order for immediate possession. Because we do not reverse the trial court’s order, we affirm on this issue as well.
Affirmed.
Gruber and Whiteaker, jj., agree. | [
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PER CURIAM
hThis is an appeal from the denial of appellant Corie Rodrigus Frazier’s pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For the reasons set forth below, the order of the circuit court is affirmed.
On April 23, 2013, Frazier, was convicted by a jury of attempted first-degree murder, two counts of aggravated assault, and possession of a firearm. He was sentenced to' an aggregate term of- 852 months’ imprisonment. The trial court directed a verdict on two counts of aggravated assault, and the jury acquitted Frazier of ’one count of committing a' terroristic act. The convictions aré the end result of an altercation that took place between Frazier and his friend, Mark Watts, which culminated in ' Frazier shooting Mark Watts five times, while Sharoh Watts was in close proximity. Frazier contended at trial that Mark Watts also had a gun, and Frazier, therefore, fired in self-defense. On direct appeal, the sufficiency of the evidence was challenged with respect to Frazier’s conviction for the aggravated assault of Sharon Watts. The Arkansas Court of Appeals affirmed the conviction |gon March 19, 2014. Frazier v. State, 2014 Ark. App. 191, 2014 WL 1092455. The mandate was issued on April 8, 2014.
Frazier filed a properly verified, timely petition for postconviction relief on May 5, 2014, contending that he was deprived of effective assistance of counsel based on the following allegations of error: (1) counsel failed to conduct a proper pretrial investigation and an effective cross-examination of the State’s witnesses; (2) counsel failed to adequately impeach the State’s key witness, Sharon Watts, failed to present evidence explaining the trajectory of a certain bullet fragment, and, consequently, failed to file an adequate appeal that challenged the evidence supporting his convictions on all counts; (3) counsel failed to strike a juror for cause who was first cousin to an officer who was a witness for the prosecution. The circuit court denied the petition without conducting an evidentiary hearing and adopted, “in toto,” the findings and conclusions encompassed in the State’s responsive pleading. In its adopted findings, the circuit court concluded that, in view of the evidence adduced at trial, Frazier’s allegations of error were unsubstantiated and failed to meet the two-prong burden of proof outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
On appeal, Frazier repeats the allegations of error described in his Rule 37 petition, but also raises two new allegations. Frazier asserts that counsel erred by failing to petition this court for review of the decision rendered by the court of appeals' and also raises a new- allegation that counsel failed to challenge the prosecution, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for withholding evidence that consisted of pretrial statements given to investigators by Sharon Watts.
IsOur general rule is that'’specific allegations- of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). This court will not' consider new matters not raised in the Rule 37 petition for the first time on appeal, unless they are so fundamental as to void the conviction. Nelson v. State, 344 Ark. 407, 415, 39 S.W.3d 791, 797 (2001) (per curiam).
Frazier contends that counsel failed to raise a Brady claim when it came to light, at trial, that Sharon Watts had given investigators detailed statements describing the relevant events. According to Frazier, Sharon Watts’s prior statements contained ‘ information that contradicted her trial testimony, but Frazier does not identify which contradictions he is referencing and does not point to -any evidence contained in the trial record that the prosecutor withheld these statements, or that' his counsel was unaware that they existed. In fact, Frazier asserted below in his Rule 37 petition that trial counsel was aware Sharon Watts had made inconsistent statements to investigators, but failed to effectively use those inconsistencies to impeach her testimony, ; Thus, not only did Frazier fail to raise a Brady claim below, he affirmatively represented to. the circuit court that counsel was-aware 'of the evidence that he now asserts in his appeal brief was withheld by the prosecution. Where a petitioner offers nothing to show, that information was concealed from the defense, and the issue could have been determined with certainty at the time of trial, -the petitioner has not demonstrated a Brady violation. McClure v. State, 2013 Ark. 306, at 2,2013 WL 4774458 (per curiam).
To the . extent that an allegation of a Brady violation may implicate- a fundamental error, Frazier’s allegations do not. Cf Howard v. State, 2012 Ark. 177, at 7, 403 S.W.3d 38, 44 (substantiated Brady claim meets the requirements for the issuance of a writ of error coram nobis)'. The allegation that the prosecutor fáiled to disclose evidence that was introduced during the trial is a claim of prosecutorial misconduct that could have been raised at trial or on direct appeal and is therefore, not a claim that can be raised for the first time in a Rule 37 petition. Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 33 (2006) (allegation of prosecutorial misconduct that includes a failure to disclose evidence was not a fundamental error that rendered the conviction void, but was an issue that should have been raised at trial).
The allegation that counsel failed to file a petition for review,of the opinion rendered by the court of appeals was not raised below and will not be reviewed on appeal. Frazier’s new allegation that counsel failed to raise a Brady violation contradicts the allegations contained in his Rule 37 petition, and, otherwise fails to identify sufficient facts warranting review on the basis that it implicates a fundamental error capable of rendering his conviction void.
As to the ineffective-assistance-of-cóun-sel claims raised and ruled on below, this court has held • that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, at 4, 433 S.W.3d 234, 239. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire record, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, at 3, 400 S.W.3d 694, 697.
5When considering an appeal from a circuit court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole - question presented is whether* based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland, 466 U.S. 668,104 S.Ct. 2052, the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. Under Strickland, the effectiveness of counsel is assessed under a two-pronged standard. First, a petitioner must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the-Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 108, 251 S.W.3d 290, 292-93 (2007). In order to demonstrate counsel’s error, a petitioner must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59 at 4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of. overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Bryant v. State, 2013 Ark. 305, at 2, 429 S.W.3d 193,196 (per curiam).
The second prong requires petitioner .to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, the .fact-finder would have had a reasonable doubt respecting guilt, i.e.,- the decision reached would have been different absent | (¿he errors. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Conclusory' allegations unsupported by facts and which provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam). The burden is on a petitioner to provide facts that affirmatively prove his ineffective-assistance-of-eounsel claims, and unsubstantiated allegations cannot form the basis of postconviction relief. Watkins v. State, 2010 Ark. 156 at 10, 362 S.W.3d 910, 917.
For his first assignment of error, Frazier argues that counsel erroneously failed to strike a juror, Ms. Magee, when it was revealed during voir dire that Magee was related to Officer Griffin, a witness for the prosecution. Frazier cites Arkansas Code Annotated section 16-^31 — 102(b), for the proposition that Magee should have been struck as a matter of law. Frazier also cites to and relies upon the concurring opinion of justice O’Connor in Smith v. Phillips, 455 U.S. 209, 234, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), which discusses the doctrine of implied bias and noted that most jurisdictions have statutes that set forth conduct or status that will automatically disqualify prospective jurors, without regard to whether that person is actually biased. Id.
In Arkansas, our statute implies bias where a juror is related to either a party or to counsel for either party, but it is nbt applicable to a relationship between a witness and a prospective juror. See Ark. Code Ann. § 16-31-102(b)(l) (Supp. 2013): Even when a prospective juror- is related to either a party or an attorney in the pending' ease, the prospective juror can nevertheless serve by consent of thé- parties. Id. Thus, under no circumstance are parties compelled by law to' exclude certain jurors because of their status. 17While our statute does not address bias with respect to a prospective juror’s relationship to a witness, we have recognized the doctrine of implied bias where a juror is closely related to a witness to a controverted issue, and a trial court refuses to strike the juror for cause. Beed v. State, 271 Ark. 526, 534, 609 S.W.2d 898, 905 (1980)(deci-sion under prior statute). Here, Magee served by consent of the parties, and this is.not a ease where the trial court refused to strike her for cause. Rather,,-Frazier challenges his counsel’s judgment for consenting to Magee’s service. -
The trial' record reveal’s that Magee stated during voir dire that, even though she was related to Griffin, the two of them had no social interaction Whatsoever1 and that she would not give Griffin’s testimony more weight than that of any other witness. Moreover, Griffin merely took pictures, measurements, and collected evidence from the crime scene; he was not an eyewitness to the shooting, and his testimony was not controverted. The record further reveals that Frazier was present during jury selection, arid he was, therefore, aware that counsel had consented to Magee as a juror.
Once jurors'' are selected by consent of the parties, they are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Howard v. State, 367 Ark. 18, 37, 238 S.W.3d 24, 39 (2006); Huls v. State, 301 Ark. 572, 580, 785 S.W.2d 467,471-72 (1990). Moreover, this court will not label counsel ineffective because of possible bad tactics in jury selection. Howard, 367 Ark, at 37, 238 S.W.3d at 39. In sum, Frazier fails to allege sufficient facts or to present any evidence in the trial record to overcome the presumption that Magee was unbiased, Or that counsel’s judgment regarding Ma-gee’s | acompetence tó serve impartially was unreasonable. The circuit court did not clearly err by dismissing this claim.
Frazier further argues on appeal that counsel was “grossly ineffective” for submitting an inadequate direct appeal to the court of appeals.' However, Frazier’s allegation of. error raised on appeal in support of his ineffective-appeal claim differ from the allegation raised below. Specifically, in his Rule 37 petition, Frazier alleged that counsel failed to challenge, on direct appeal, the sufficiency of the evidence supporting his convictions on all counts and, instead, challenged only one aggravatedrassault count. Frazier does not raise this allegation in his appellate argument. Frazier’s failure to make this allegation on appeal precludes review of the issue. Davis v. State, 375 Ark. 368, 375, 291 S.W.3d 164, 169 (2009). To the extent that Frazier’s new allegations of error are preserved on appeal, they are without merit. Frazier’s ineffective-appeal claim rests on an assertion that counsel failed to develop sufficient evidence at trial to ensure reversal of his convictions on direct appeal. Such conclusory allegations are insufficient to establish a claim that counsel was ineffective on direct appeal.
A petitioner who claims that appellate counsel was ineffective bears the burden of making a clear showing that counsel failed to raise some meritorious issue on appeal. State v. Rainer, 2014 Ark. 306 at 13, 440 S.W.3d 315, 323 (citing Moore v. State, 2011 Ark. 269, 2011 WL 2412787 (per curiam)). Counsel’s failure to raise a specific issue must have amounted to error of such magnitude that it rendered appellate counsel’s performance constitutionally deficient under the Strickland criteria. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court’s declaring reversible lflerror. Id. (citing Walton v. State, 2013 Ark. 254, 2013 WL 2460191 (per curiam)). It is petitioner’s responsibility to establish that the issue was raised at trial, that the trial court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. Id. Here, Frazier does not identify any meritorious issue raised at trial and denied by the trial court which could have been raised on appeal. Instead, Frazier asserts that his convictions would have been reversed on appeal, if certain facts had been developed at trial. Such speculative allegations are not sufficient to establish a claim for relief under a theory that counsel was ineffective on direct appeal. Rainer, 2014 Ark. 306, at 13, 440 S.W.3d at 323.
In his final claim of ineffective assistance of counsel, Frazier contends that counsel failed to adequately-investigate and was therefore unprepared to conduct an effective cross-examination of Sharon Watts. Frazier contends that, due to counsel’s lack of preparation, the testimony of the State’s only key witness was not discredited. To prevail on a claim that trial counsel was ineffective for failing to adequately investigate and prepare for trial, the petitioner must show how a more searching pretrial investigation or better preparation would have changed the results of the trial. Bond v. State, 2013 Ark. 298, at 9, 429 S.W.3d 185,192 (per curiam). Specifically, the petitioner must delineate the actual prejudice that arose from the alleged failure to investigate and prepare for trial and demonstrate a reasonable probability that additional preparation and the information that would have been uncovered with further investigation could have changed the outcome of the. trial. See, e.g., Bryant v. State, 2013 Ark. 305, at 9, 429 S.W.3d 193, 200 (per curiam). This court has stated that, as with any other claim of ineffective assistance of counsel, a petitioner'cannot succeed merely.|inby alleging that counsel was not prepared. Camargo v. State, 346 Ark. 118, 129, 55 S.W.3d 255, 263 (2001).
Frazier insists that Sharon Watts incorrectly testified that, shortly -before the shooting, Frazier drove up to the Wattses’ house and rolled down the driver’s side window of his car. According to Frazier, the driver’s side /window of his car was inoperable and, therefore, could not have been rolled down at the time of the shooting. Frazier asserts that had counsel conducted an adequate pretrial investigation, documentary proof of the window’s defect could have been produced to impeach this testimony. Frazier cites no other contradictory information presented by Sharon Watts, or any other State witness, that trial counsel failed to discover or effectively utilize for impeachment.
A review of the record shows that Sharon Watts did not testify that Frazier rolled down the driver's side window. Rather, she testified that Frazier was sitting on the passenger side of the car with another individual sitting in the driver’s seat when the window was' rolled down. It is not clear from her trial testimony which window she indicated had been rolled down, but the record shows' that' Mark Watts testified that the driver’s side window was down at the’timé of the shooting. In any event, Frazier pointed out in his testimony that the driver’s side window was inoperable and, thus, was able to present this issue to the jury for its consideration. Clearly the jury resolved the conflict in favor of conviction. Price v. State, 373 Ark. 435, 438-39, 284 S.W.3d 462, 465 (2008)(The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence.).
|n In' support of his claim that counsel was unprepared, Frazier presumes that documentary evidence establishing the condition of the driver’s side window was material evidence and its introduction would have undermined the credibility of all the evidence presented, including the testimony of both Sharon and Mark’Watts. Evidence is material if there is a reasonable probability that its disclosure would have changed, the outcome of the trial. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000) (quoting Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Frazier’s contention that the testimony of Sharon Watts was key to his convictions is helied by the trial record, which includes the testimony of a neighbor, Delores- Ross, who observed Frazier standing , over Mark Watts and firing while Watts was attempting to crawl to safety inside his home. Finally, Frazier testified during cross-examination that he pursued Watts and fired the first shot while Watts was 'on the ground allegedly attempting to retrieve his weapon which, according to Frazier, had been dropped on the ground and had .fallen underneath a parked vehicle. -No evidence was presented at trial to corroborate Frazier’s testimony that Mark Watts -had a gun. However, even .assuming that Watts-.was armed, Frazier’s own testimony that he chased Watts down, and .‘shot- while Watts was prostrate tends to -abrogate a self-defense claim, in that deadly force- is justified as self-defense only if the use of force cannot be avoided by. retreating. Heinze v. State, 309 Ark. 162, 166, 827 S.W.2d 658, 660 (1992); Ark.Code Ann. § 5-2-607(b) (Repl. 2006). In view of the testimony and other evidence. presented by the .State, combined with a- consideration of Frazier’s own description of the incident, Frazier’s allegations do not give/rise to a reasonable probability that additional preparation could have changed the outcome of the trial. Bryant, 2013 Ark. 305, at 9, 429 S.W.3d at 200.
| isFor his last assignment of error, Frazier contends that the circuit court did not comply , with the requirements of Arkansas Rule of Criminal Procedure 37.3(a) (2014), because the order lacks the proper findings of fact. Here, the circuit court entered a one-page order that summarily denied relief. However, in its order, the court adopted “in toto” the findings 'and conclusions found in the State’s responsive pleading. These adopted findings set forth each allegation raised by 'Frazier and specifically concluded that in view of the evidence adduced at trial, Frazier’s allegations of error pertaining to jury selection, trial preparation, and inadequate cross-examination lacked merit in that Frazier failed to demonstrate.that counsel’s representation was unprofessional and prejudicial under the facts contained in the record. In sum, the circuit court complied with Rule 87.3(a) when it adopted the State’s findings and- conclusions. When- the lower court' adopts an instrument as its own, it makes no difference who drafted it, and the adopted order is in compliance with the law. Scott v. State, 267 Ark. 628, 631, 593 S.W.2d 27, 29 (1980). Even assuming that the findings failed to adequately specify the parts of the record that form the basis of the circuit court’s decision under Rule 37.3(a), we will still affirm if the record conclusively shows that the petition is without merit. Greene v. State, 356 Ark. 59, 65, 146 S.W.3d 871, 877 (2004). Here, the findings adopted by the circuit court met the requirements of the Rule, and, to the extent that it failed to cite with particularity the parts of the record that supported its conclusion, a review of -the-, record on appeal demonstrates that the petition is without merit. The circuit court’s order is affirmed.
Affirmed. | [
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DAVID M. GLOVER, Judge
hln March 2013, appellant Michael Howard pled guilty to being a felon in possession of a firearm. The circuit court suspended imposition of sentence for six years, conditioned on good behavior and payment of fines, court costs, and fees. In November 2014, the State filed a petition to revoke ■ Howard’s suspended sentence, alleging Howard had committed- two counts of theft by receiving. After a hearing, Howard’s suspended sentence was revoked, and he was sentenced to six years in the Arkansas Department of Correction. Howard now appeals the revocation of his suspended sentence, arguing the State violated his right to confront witnesses against him during the revocation hearing. We affirm.
At the revocation hearing, Detective Donald Eversole with the Van Burén Police Department testified that in August 2013, Chevrona Lewis filed a residential-burglary and theft-of-property report, reporting a television, PlayStation, some games, an iPad, an iPod, and some other items were missing from her residence. Lewis provided serial numbers for the 12PIayStation, the iPod, and the iPad, and in October 2014, Eversole learned the serial number of the iPad had shown up as having been pawned at A and B Pawn Shop by Tuesday Howard, appellant’s wife. When the State attempted to introduce the receipt for the iPad ‘from A and B Pawn, Howard' objected on the basis that it violated the Confrontation Clause because Eversole was not the person from the pawn shop; this objection was overruled. Eversole testified the iPad’s serial number matched the one given-by Lewis, and based on his conversation's-with Tuesday Howard, he was led to appellant, who first told Eversole he got the iPad from his wife’s brother and then changed his' story, stating that Lewis let him borrow the iPad so that he would not get into trouble with his wife (he and Lewis had met on a dating site and were seeing each other for a brief time). Eversole testified that Howard then came to ■ the police station for an interview -and again first told him the pawned iPad belonged to Tuesday’s brother. He explained that Howard then changed his story, admitting he had Lewis’s iPad but claiming Lewis had allowed him to borrow it to “cover his ass” with his wife so he could tell her that he was picking up his tablet from his cousin instead of admitting that he had been at Lewis’s house.
Eversole further testified he continued to check Leads Online and found that a man named Christopher Wilier had returned or sold the PlayStation matching Lewis’s serial numbers to Game Traders; Game Traders provided a receipt showing Howard had originally sold the PlayStation to Game Traders. Howard again objected to the introduction of the Game Traders receipt based on violation of the Confrontation Clause, which was overruled. Ever-sole testified that, in a telephone interview with Howard, Howard told him Lewis | ..¡wanted to borrow $200 from him to move, which he loaned her, and he took the PlayStation as collateral. Howard said he tried to call Lewis after she moved but he had not heard from her.
Chevrona Lewis testified she knew Howard as Michael Smith; that he told her he was single; that her acquaintance with him lasted a month or less; that he had been to her residence one time during that period; that her home was burglarized in August 2013; that she did not suspect Howard in the burglary; that Howard texted hey and told her not to call or text him again; and that her phone number was the same number it had been since 2005. Lewis denied she had given the. iPad to Howard as a cover story. She also denied ever borrowing money from Howard or giving him the PlayStation, as collateral for a loan; in fact, she testified it was..Howard who asked to borrow money from her, which she declined to lend.
Howard renewed his objection to the pawn ticket from A and B Traders and the receipt from Game Traders, arguing that both were testimonial under the Confrontation Clause. These objections were denied, and the trial court revoked ^Howard’s suspended sentence. Howard now brings this appeal.
In order to revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Holmes v. State, 2012 Ark. App. 451, 2012 WL 3744716. In a hearing to revoke, the burden is on the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). On |,appellate review, the trial court’s findings are upheld unless they are clearly against the preponderance of the evidence. Id. Because of the lower burden of proof, evidence that is insufficient to support a criminal conviction may be sufficient for the revocation of a suspended sentence. Knotts v. State, 2012 Ark. App. 121, 2012 WL 387852. The appellate courts defer to the trial court’s superior position to determine credibility and the weight to be accorded testimony. Stultz, supra.
Howard argues that the pawn ticket and the Game Traders receipt were testimonial in nature in violation of the Confrontation Clause. Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). The Confrontation Clause applies to “witnesses” who “bear testimony” against the accused, with testimony typically being “[a] solemn declaration or affirmation made for the- purpose of establishing or proving some fact.” Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “Testimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Raquel-Dieguez v. State, 2015 Ark. App. 626, at 6, 475 S.W.3d 585, 589 (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004)). In Crawford, the Supreme Court held that a “core class” of “testimonial” statements exists that include
ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness [(¡reasonably to believe that the statement would be available for use at a later trial.
Crawford, supra, at 51-52, 124 S.Ct. 1354.
In support of his argument that the trial court violated his right to confront witnesses by allowing the pawn ticket and the Game Traders receipt into evidence, Howard cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In -that case, the Supreme Court held the admission of sworn affidavits from laboratory analysts reporting that the forensic analysis of material seized by police from the defendant was cocaine, without requiring the analysts to appear in court and testify in person, was a violation of the Confrontation Clause, absent a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them.
The case at bar is distinguishable from the laboratory analysts’ sworn affidavits in Melendez-Diaz. Here, .the pawn ticket and the Game Traders receipt were not sworn affidavits that fall into the category of “testimonial statements,”, as in Melendez-Diaz. They are not statements at all, sworn or otherwise. Instead, they were the product of information gathered by Detective' Eversole, who was available to be cross-examined. Neither of those items were testimonial, in. nature; therefore, there was no Confrontation Clause violation.
Even had the trial court erred, we would still affirm. A Confrontation Clause violation is subject to harmless-error analysis. Roston v. State, 362 Ark. 408, 208 S.W.3d 759 (2005). Whether a Confrontation Clause violation is harmless error depends on a variety of factors, including .the importance of the .witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting | fithe testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Green v. State, 2015 Ark. App. 291, 461 S.W.3d 731.
Here, the State introduced a video-taped interview and an audio recording of a telephone interview with Howard. In the video-taped interview, Howard stated that Lewis had given him her-iPad to “cover his ass” .with his -wife. However, Lewis denied loaning Howard the iPad to use as a cover story¡ In the telephone interview, Howard stated Lewis gave him the PlayStation to-hold as collateral for a $200 loan he made-to her; Lewis also denied she had borrowed any money from Howard or had given him- her PlayStation - as collateral. Howard’s own statements place -both the iPad and the PlayStation" in his possession, and the trial court did not believe his version of events, finding Lewis’s testimo ny was more credible than Howard’s. Therefore, the pawn receipt and the game store receipt were cumulative to Howard’s admission that he had possession' of both the iPad and the PlayStation, and if there had been error, it would have been harmless.
Affirmed.
Virden and Kinard, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
11 This appeal involves a challenge to the eligibility of appellee Josh Johnston to hold.public office. Brian Haije, a registered voter in Cleburne County, challenged Johnston’s ^eligibility to run as a candidate for Cleburne County Sheriff alleging that Johnston was constitutionally ineligible to run for or hold public office.
On March 24, 1995, Johnston was charged with felony offense' of violation of the Arkansas hot-check law, Ark.C'ode Ann. § 5-37-302 (Repl.2013). The charges were subsequently reduced to a Class A misdemeanor, and on June 12, 1995, Johnston pleaded • guilty, was sentenced, paid restitution, fines and courts costs.
On February 28, 2014, Johnston filed to run as a candidate for Cleburne County Sheriff. Haile filed a petition for declaratory judgment and a writ of mandamus requesting that the Cleburne County Circuit Court find the misdemeanor hot-check violation an infamous crime pursuant to article 5, section 9 of the Arkansas Constitution and hold Johnston ineligible to run for or hold public office. On May 8, 2014, the circuit court held that Johnston’s conviction was an infamous crime and rendered Johnston ineligible to run for or hold public office. Thereafter, Johnston requested and received a new trial at the circuit court level, which ended with the same result. From that order, on May 19, 2014, Johnston filed a petition for emergency stay of the circuit court’s order, expedited consideration, and delay of counting and certification of the vote for the office of Cleburne County Sheriff to run for or hold office with this court. On May 20, 2014, we denied Johnston’s request. Accordingly, the circuit court’s order remained in effect.
In June 2014, Johnston filed a petition to seal his record pursuant to Act 1460 of 2013, |sArk.Code Ann. §§ 16-90-1401 et seq. (2013), in Cleburne County Circuit Court. On June 23, 2014, the circuit court entered an order sealing Johnston’s misdemeanor conviction. On November 2, 2015, Johnston filed as a candidate for Cleburne County Sheriff. On November 12, 2015, Haile returned to circuit court and filed a petition for declaratory judgment and writ of mandamus alleging Johnston was ineligible to serve and contended that the circuit court’s'2014 order controlled. The parties timely responded including Johnston’s response to Haile’s petition and motion for summary judgment. On November 24, 2015, the circuit court held a hearing. On that same day, the circuit court entered an order dismissing Haile’s petition and granting Johnston’s motion for summary judgment. Specifically, the circuit court held that pursuant to Ark.Code Ann. §§ 16-90-1401 et seq., Johnston’s record was sealed and expunged and he was eligiblé to run for and hold public office. From that order, Haile timely appeals and presents one issue on appeal: whether the circuit court erred in ruling that Johnston was eligible to run for public office after having been previously determined ineligible- as a result of Johnston’s being found guilty of committing an infamous crime in violation of article 5, section 9 of the Arkansas Constitution, On January 11, 2016, we granted expedited consideration of this matter.
I. Standard of Review
We review the denial of a declaratory judgment action with a clearly erroneous standard. Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347. Further, we review issues of statutory interpretation de novo. See Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007). The basic rule of statutory construction is to give effect to the intent of the 14General Assembly. Id. 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. Id. This court construes 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. -Finally, this court will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Id.
II. Law & Analysis
Haile asserts that the circuit court erred in holding that Johnston’ was eligible to run for and hold office. Haile contends that the circuit court erred because res judicata bars any relitigation of the issue. Further, relying on State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005), and Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997), Haile contends1 that this court has held that once an; individual is deemed ineligible to hold office pursuant to our constitution, that individual is ineligible in perpetuity. Haile further asserts that, based on these cases, it was error for the circuit court to enter the November 24, 2015 order.
Prior to reaching the merits, we must first address Haile’s contention that the presept case, is barred from review based on the doctrine of res judicata. Haile asserts that the circuit court erred because it was barred by res judicata from reaching the same issue.the circuit court decided in -2014. However, this argument is misplaced. “Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action.” Middleton v. Lockhart, 344 Ark. 572, 578, 543 S.W.3d 113, 117-18 (2001) (internal citations omitted). However, the issue presented here, the effect of Johnston’s sealed record, was not litigated in the 2014 case. Stated differently, res judicata is not applicable to the case at bar because the issue before us was not a part of the 2014 litigation. Therefore, the doctrine of res judicata does not apply.- • •
Turning to the issue presented, we must review the ápplieable laws. First, 'article 5, section 9: “Felony convictions; eligibility of persons convicted,” of the Arkansas Constitution provides as follows.
No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.
Second, in 2013, the Arkansas General Assembly passed-Act 1460, “An. Act-to Establish the Comprehensive Criminal Record Sealing Act of 2013” which contains the statutes at issue. See ArfcCode Ann. §§ 16-90-1401 et seq. The intent of the Act is found in Ark.Code Ann. § 16-90-1402, “Intent”;.
(a) The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology.
(b) It is the intent of the General Assembly, to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.
Next, Ark.Code Ann. § 16-90-1404(4)(A) defines “seal” as
to expunge, remove, sequester, and treat as confidential the record or records in question according to the procedures established by this subchapter.
Further in the Act, Ark.Code Ann. § 16-90-1417, “Effect of sealing,” provides in [fipertinent part:
(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by-law.-
(b)(1) Upon the entry of the uniform order, the person’s underlying conduct shall be deemed as a matter of law never to have'occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist. (2) This subchapter does not prevent the use of a prior conviction otherwise sealed under this subchapter for the following purposes:
(A) Any criminal proceeding for any purpose not otherwise prohibited by law;
(B)- Determination of offender status under the former § 5-64-413;
(C) Habitual offender status, § 5-4-501 et seq.;
(D) Impeachment upon cross-examination as dictated , by the Arkansas Rules of Evidence; or
(E) Any disclosure mandated by Rule 17, 18, or 19 of the Arkansas Rules of Criminal Procedure.
Moving to our review of the statute before us, “[t]he first rule in considering the meaning and effect of a statute is to construe ⅝ just as it l-eads, giving the words their ordinary and usually accepted meaning in common language.” Ortho-McNeiL-Janssen Pharm., Inc. v. State, 2014 Ark. 124, at 10, 432 S.W.3d 563, 571. The basic rule of statutory construction is to give effect to the intent of the -legislature. Dep’t of Human Servs. & Child Welfare Agency Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing any statute, we place it beside- other statutes relevant to the sub ject matter in question and 17ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed together and in harmony, if possible. Berryhill v. Synatzske, 2014 Ark. 169, at 4-5, 432 S.W.3d 637, at 640.
Here, in reviewing Ark.Code Ann. § 16-90-1417, “Effect of sealing,” the plain and ordinary meaning in the statute is that a person whose record has been sealed shall have all privileges and rights restored and not affect any of his or her civil rights or liberties unless otherwise specifically provided by law. The plain language also provides that upon the entry pf the uniform order,, the- person’s underlying conduct shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist. Additionally, the plain language of Ark.Code Ann. § 16-90-1417(b)(2)(A)-(E) also provides five exceptions to the sealing of a prior conviction and allows the use of the prior conviction in the enumerated situations. In other words, subsection (b)(2)(A)-(E) does not prevent the use of a prior conviction — that would otherwise be sealed1 — in the specifically identified situations of subsection (b)(2). However, none of these exceptions are applicable to this matter. In sum, here, based on the plain language of the statute at issue, as a matter of law, Johnston’s misdemeanor conviction never occurred, Johnston never had a record, and all of his privileges and rights are restored. Accordingly, the plain language dictates that it is as if Johnston never had the misdemeanor conviction. Thus, Johnson is eligible to run for and hold office.
Further, our case law supports our interpretation of the statute. In Powers v. Bryant, 8309 Ark. 568, 571-72, 832 S.W.2d 232, 233-34 (1992), we addressed a similar situation. The pertinent facts from Powers are as follows. 'On August 17, 1932, Alths “Shorty” Doshier, mayor of Yellville, Arkansas, “pled guilty to the offenses of burglary and grand larceny. Doshier was seventeen at the time and served seventy-six days' confinement in the Arkansas Boys’ Industrial School. More than fifty years later, on May 1,1984, Doshier filed a petition for writ of' error in the circuit court of Marion County. The basis of Doshier’s petition -fras liis assertion that he ... [had not been] informed of the right to counsel at the time he entered his guilty plea in 1932. On July 29,1985, the Honorable John Lineberger granted Doshier a writ óf error coram nobis setting aside Doshier’s 1932 convictions and declaring the 1932 convictions ‘null and void.’ Judge Lineberger further ordered the reinvestment of all Doshier’s rights of which he was deprived or could have been deprived because of the 1932 felony conviction. Finally, Judge Lineberger ordered the sealing of the record containing the coram nobis proceedings.” Id., at 569-70, 832 S.W.2d 232 -33. On November 8, 1990, Kerm Powers filed a petition for writ of mandamus in the Pulaski County Circuit Court directing then Attorney General Winston Bryant to prosecute an action to remove Doshier from Doshier’s office as mayor of Yellville, Arkansas. Powers argued that Arkansas Constitution article 5, section 9 prohibited Doshier from holding office because Doshier was convicted in 1932 of the crimes of burglary and grand larceny. The circuit court denied Powers’s petition. We affirmed and explained as follows.
The. question, then becomes whether Ark. Const; art. 5, § 9 prohibits a citizen with a “null and void” expunged felony conviction from holding public office in this state.
Appellant argues that the mere “fact” of a prior conviction, regardless of |9whether the conviction has been expunged or voided, renders a citizen con- . stitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990). In the Tyler case, .we discussed the legal effect of expunction under the Federal Youth Corrections. Act, and relied on decisions of the. Fifth and Sixth Circuits holding that expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, “the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been”’ Id. at 665, 799 S.W.2d at 790, quotihg United States v. Arrington, 618 F.2d 1119 (5th Cir.1980).
Id., 832 S.W.2d at 233-34; see also Tyler v. Shackleford, 303 Ark. 662, 663, 799 S.W.2d 789, 789 (1990).
Although Haile asserts that Powers is distinguishable from Johnston’s case because, in Powers, Doshier had not been deemed ineligible to hold office before he was elected, we disagree. In Powers, while citing to Tyler, we held that the expunged conviction was “as if it had never been.” Id., 309 Ark. at 572, 832 S.W.2d at 234. Further, Haile contends that Old-ner, supra, and Allen, swpra, require that we hold that Johnston’s conviction renders Johnston ineligible to run for or hold office in perpetuity. However, a careful reading of Oldner, which cites to Allen, does not support Haile’s argument. In Oldner, the issue presented was what constitutes an category of “infamous crime” for purposes of removing an elected official from public office. Oldner, 361 Ark. at 323, 206 S.W.3d at 819. Thus, this court was called upon to determine which crimes fell within the “infamous crimes” pursuant to our constitution. In that case, Oldner’s convictions were not expunged or sealed as presented in this case. In reversing the circuit court, and rendering Oldner ineligible to hold office, we explained:
ImOldner’s. convictions of infamous . crimes disqualify him from holding public office. .This is not a disqualification that can be overcome by the will of the electorate. Simply put, he remains ineligible for holding public office in perpetuity. See Allen v. State, 327 Ark. 350, 327 Ark. 366A, 939 S.W.2d 270 (1997).
Id. at 333, 206 S,W.3d at 826. This holding was based on the specific circumstances in Oldner’s case and the unsealed convictions against him. Id. at 333, 206 S.W.3d at 826. That is not the case here because Johnston’s conviction has been sealed and it is as if it had never existed.
Accordingly, based on our standard of review and our discussion above, we cannot say that the circuit court clearly erred in denying Haile declaratory relief. Therefore, we affirm the circuit court.
Affirmed.
BRILL, C.J., and DANIELSON, J., concur.
Special Justice ROBERT J. LAMBERT, JR. concurs with opinion to follow.
WOOD, J., not participating.
. The appellees are as follows: • Josh Johnston, individually and as a candidate for Sheriff of , Cleburne County: Lariy Crabtree, Joe Tour-near, and Lee Noble, in their representative capacities as member of the Cleburne County Election Commission; Doyle Webb in his representative capacity as chairman of the Republican Party of Arkansas; Julie Feil, in her representative capacity as chairman of the Cleburne County Republican Committee; and Paul Muse in his official capacity as Cleburne County Clerk.' | [
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PER CURIAM
liln 1981, appellant David Lee Allen was found guilty of aggravated robbery by a Crittenden County jury. He was sentenced to life imprisonment. Allen appealed, and this court reversed and remanded for a new trial. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). A second trial resulted in a hung jury, and, at a third trial, Allen was again found guilty and sentenced to life imprisonment for aggravated robbery and to a concurrent six-year sentence for possession of a firearm by a felon. Allen appealed, and this court affirmed. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983),
On March 20, 2015, Allen filed a pro se petition for writ of habeas corpus in the Lee County Circuit Court, the county in which he is incarcerated. On April 23, 2015, the circuit court entered an order dismissing Allen’s petition for writ of habe-as corpus. On that same 12day, Allen filed a notice of appeal from the order, and, on May 5, 2015, Allen filed a motion for clarification and reconsideration. On May 20, 2015, the circuit court entered a supple: mental order stating that the court’s previous denial of relief was based on the face of the pleadings and, that Allen failed to establish - cause to move forward. Allen lodged an appeal, from the order in this court.
Now before us is Mien’s motion to file a belated brief. Because it is clear from the record that Allen could not prevail on appeal, we dismiss the appeal, and the motion is therefore moot. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. Daniels v. Hobbs, 2011 Ark. 192, 2011 WL 1587996 (per curiam).
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are 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 a definite and firm conviction that a mistake has been committed. Hobbs v. Gordon, 2014 Ark, 225, at 5, 434 S.W.3d 364, 367. Here, the circuit court correctly determined that Allen did not allege grounds in his petition on which the writ could be granted.
A writ of habeas corpus is proper when a judgment of conviction is'invalid on its face or when a trial court lacked jurisdiction over the cause.’ Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566. The burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there is ho basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial jjjinvalidity of the judgment-añd-cómmitment order or the lack of jurisdiction and make a “showing by affidavit’ or other evidence [of] probable cause to believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
In his petition for writ of habeas corpus, Allen argued that trial counsel was ineffective for advising him to not accept a plea offer, which prejudiced him because hé “ha[d] to stand trial” and because his sentence was more severe than the one proposed in the plea offer and that trial counsel was ineffective for not presenting mitigating factors, including his complete social history, his troubled childhood, his “slow schooling,” and his abuse of drugs and alcohol. Allen’s claims that his trial counsel was ineffective' are not cognizable in a habeas proceeding. Woodson v. Hobbs, 2015 Ark. 304, 467 S.W.3d 147 (per curiam) (citing McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992)).
With reference to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Allen claimed that, although he was twenty-one years old, he was still a juvenile with diminished culpability and should not be subject to a sentence of life imprisonment without parole just as an eighteen year old cannot be so sentenced for a nonhomicide offense, as it violates the Eighth Amendment prohibition against cruel and unusual punishment and the Equal Protection Clause of the United States .Constitution. Notably, Allen made no claim, nor does the record reflect, that he was, in fact, |4a juvenile at the time of crimes. He essentially claimed he should be treated the same as a juvenile because there is not any real difference between someone who is eighteen years old and someone who is twenty-one years old. To the extent Allen’s claims challenge the validity of his sentence of life imprisonment based on his age, Graham “does not mandate a resentencing procedure that takes into account a juvenile, offender’s age.” Hobbs v. Turner, 2014 Ark. 19, at 11, 431 S.W.3d 283, 289. Cases such as Graham and its progeny clearly state that a juvenile is considered a person younger than eighteen at the time the offense was committed. See Hobbs v. Hodge, 2015 Ark. 207, 461 S.W.8d 704. Because Graham is inapplicable, Allen made no convincing claim that his sentence is invalid or void, and he .failed to demonstrate that, his sentence exceeded the statutory maximum. Grissom, 2013 Ark. 417, 2013 WL 5775663.
Allen further argued that his trial counsel’s ,usq. of preemptory challenges to exclude white-jurors and the State’s use of preernptory challenges to exclude black jurors violated his right to a trial by a fair and impartial jury. However, Allen failed to allege that trial counsel’s and the State’s use of preemptory challenges somehow invalidated the judgment-and-commitment order on its face or implicated the trial court’s jurisdiction. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case or argue issues that were, or could have been, settled at trial or on the record on direct appeal from the judgment. Tucker v. Hobbs, 2014 Ark. 449, 2014 WL 5497320 (per curiam); see also Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000).
When a.petitioner in a habeas proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his burden of demonstrating a basis for a writ of habeas corpus to issue. Benton v. State, 2013 Ark. 385, 2013 WL 5519866 (per curiam). Allen clearly did not meet 15his burden; therefore, he could not prevail on appeal. See Quezada v. Hobbs, 2014 Ark. 396, 441 S.W.3d 910 (per curiam).
Appeal dismissed; motion moot. -
. Allen, as of the date of this opinion, remains incarcerated in Lee County.
. Allen made no claim that his sentence exceeded the statutory minimum or was illegal on its face. A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per curiam). If a sentence is within the limits set by statute, it is legal. Grissom v. State, 2013 Ark. 417, 2013 WL 5775663 (per curiam). Accordingly, Allen's judgment-and-commitment order was not invalid on its face. | [
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LARRY D. VAUGHT, Judge
h Appellant Markita Bell appeals the order of the Sebastian County Circuit Court denying her. motion for indigency for the purpose of receiving appointment of appellate counsel. She contends that the trial court abused its discretion in denying the motion. We affirm.
On May 27, 2015, an order terminating Bell’s parental rights was entered. Thereafter, on June 9, 2015, Bell moved for an indigency hearing, claiming that while she desired to appeal the termination decision, she lacked the financial resources to employ an attorney to represent her. . Attached to her motion was her affidavit stating that she was not employed; she supported her mother who lived with her; she received $831 in monthly Social Security SSI benefits; she received monthly income of $600-$700 for her work as a hair stylist; and she had monthly expenses of $755 (rental expenses, of $300, food expenses of $175, utility expenses of $120, and transportation expenses of $160). .
12At the June 15,2015 indigency hearing, Bell testified that she received $831 monthly in Social Security benefits. She further testified that she lived with her mother, but did not support her, and that she split rent, food, and utility expenses with her mother. Bell also conceded that the utility expenses listed on her affidavit were incorrect, stating that her monthly electric bill was actually $150-$200 and her monthly water bill was $100-$120. At one point she testified that her monthly food expense was $75, but she later stated that it could have also been $175. Bell testified that the transportation expenses listed on the affidavit were incorrect because her car had been repossessed two weeks prior. Without a vehicle, she said that her monthly transportation expenses were $65-$0. Bell also admitted, that at the termination hearing, she testified that she earned $600-$700 per month as a hair stylist. However, she contended that her income as a hair stylist varied and that she made only $200 in May and nothing in June.
Appellee Arkansas Department of Human Services (DHS) opposed Bell’s motion, arguing that her testimony.at the indigency hearing was not consistent with her testimony at the termination hearing or in her sworn affidavit. DHS argued that the inconsistencies called Bell’s credibility into question. DHS also argued that the evidence presented demonstrated that Bell’s income was above the federal guidelines for poverty. The attorney ad litem also opposed the motion, arguing that Bell’s testimony demonstrated that, she was not indigent.
The trial court denied Bell’s indigency motion from the bench. The court stated that its decision was based on the 2015 United States Federal Poverty Guidelines, the testimony and demeanor of Bell, and her affidavit. The trial court found that Bell’s testimony was inconsistent with her affidavit.' The trial court later entered an order denying Bell’s motion:
1 sThis Court finds that Markita Bell is not indigent based on the evidence related to Markita Bell’s income, expenses, and circumstances, and 'this Court [finds] that Markita Bell 'makes more than the applicable federal poverty guideline amount of $11,770 per year and that Markita Bell was not being honest in stating her financial information — especially given the discrepancies between Markita Bell’s testimony and her sworn affidavit of indigen'cy.
Bell moved for reconsideration. This motion was deemed denied. Bell timely appealed.
On appeal, Bell contends that the trial court abused its discretion in denying her motion for indigency because it improperly relied on her expected income, rather than her actual incomé, and it acted arbitrarily when it found that discrepancies between her affidavit and her hearing testimony diminished her credibility.
The burden of establishing indi-gency is on the person claiming indigency status. Cordero v. Ark. Dep’t of Human Servs., 2014 Ark. 64, at 3, 2014 WL 585978. Whether a person is indigent is a mixed question of law and fact. Id. In dependency-neglect proceedings, the trial court -is directed to use the federal poverty guidelines in determining indigency. Id. (citing Ark. Sup. Ct. R. 6—9(b)(2)(B)). On appeal, the-standard of review is whether the trial court abused its discretion in finding that the petitioner was not indigent. Id. Abuse of discretion is “a high- threshold that does not simply require error in the trial court’s decision but requires that the trial court acted improvidently, thoughtlessly,, or without due consideration.” Kapach v. Carroll, 2015 Ark. App. 466, at 4, 468 S.W.3d 801, 804.
According to the applicable federal poverty guidelines, a single person is not considered “in poverty^’ unless the person receives less than $11,770 in annual income. Annual Update of the HHS .Poverty Guidelines, 80 Fed. Reg. 3236-03 (Jan. 22, 2015). Bell admitted that at the termination hearing (when she was fighting for custody of her child), -she testified that her actual monthly income was $831 from Social Security and an additional |4$600-$700 from working as a hair stylist. Her annual income, based on her testimony at the termination hearing, would range from $17,172-$18,372, which is greater than the poverty guidelines and supports the trial court’s finding.
Bell’s subsequent indigency affidavit contained the same income figures that she testified to at the termination hearing, but she wrote on the affidavit, that her hairstyling income was “not consistent.” At the indigency hearing, Bell claimed that her monthly hairstyling income ranged from $0 to $700. In response to questioning by the trial court on this issue, Bell stated that she had not earned any hairstyling income in June 2015 because she was depressed and had not had any clients. However, the trial court did- not believe Bell’s testimony. The trial court, noting Bell’s demeanor and the- discrepancies between her hearing testimony and her affidavit, specifically found that she “was not being honest in stating her financial information.” The record’-supports this finding.
Bell’s affidavit stated that she supported her mother, but her indigency-hearing testimony was that she and her mother (who had her own job' and income) split expenses. Bell’s affidavit, which she signed on June 8, 2015, listed monthly transportation expenses of $160. ' A week later at the indigency hearing, she testified that her vehicle had been repossessed two weeks prior and that her monthly transportation expense had been reduced to $65-$80. Based on this testimony, when Bell signed the affidavit listing the $160 transportation expense, her vehicle had already been repossessed. Her affidavit also stated that she had food expenses of $175 and utility expenses of $120. But at the indigency hearing, she testified at one point that her monthly food expenses were $75 and at another point she said that they were $175. She testified at the hearing that her monthly utilities, | ¿which she split with her mother, ranged between $250-$320. Finally, Bell’s testimony concerning her hairstyling income changed depending on the context in which it was. given. At the termination hearing, she testified that she earned $600-$700 styling hair. In her in-digency affidavit, she stated that the $600-$700 figure was “not consistent.” And at the indigency hearing, she testified that she had made $200 styling hah- in the past two months. '
In sum, Bell had the burden of proving her indigency. Based on the evidence she presented and the federal poverty guidelines, the ti-ial court found that she was not indigent.. Additionally, the trial court discounted Bell’s testimony of limited finances based on its finding that she was not credible. We give due deference to the credibility determinations made by the trial court. Painter v. Ark Dep’t of Human Servs., 2013 Ark. App. 602, at 2, 2013 WL 5745129. Because the trial court did not act “improvidently, thoughtlessly, or without due consideration,” Kapach, 2015 Ark. App. 466, at 4, 468 S.W.3d at 804, we hold that it did not abuse its discretion in denying the motion for indigency and affirm.
Affirmed.
Harrison and Hixson, JJ., agree. | [
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KENNETH S. HIXSON, Judge
I lAppellant Carl Wilhelm appeals the dé-cisión of the Arkansas Workers Compensation Commission that found him to be an employee of appellee Chuck’s Metal Build-tags, Inc. (hereinafter “CMB”) and found that CMB procured workers’ compensation tasurance coverage, such that an exception to the'exclusive-remedy doctrine did not. apply. This finding rendered Wilhelm’s exclusive remedy to be under the Workers’ Compensation Act and precluded a tort action against CMB. Wilhelm argues on appeal that the Commission’s decision is reversible because (1) even if Wilhelm was an employee, CMB failed to procure workers’ compensation insurance coverage in compliance with Arkansas law, and (2) the Commission faded to. adhere to rules of fair play in administering the hearing. We affirm. .
CMB-is a company that fabricates and constructs metal buildings." Appellant, who had worked for CMB since 1999,-was seriously injured at work on a CMB construction | asite on July 16,2009. Appellant was standing on a platform and welding when he fell, sustaining major injuries. Appellant did not file a workers’ compensation claim but did file a negligence action in Franklin County Circuit Court against CMB and others in 2012. CMB asserted the exclusive-remedy doctrine in its answer as an affirmative defense. ApPellant asserted that he was an indePen-dent contractor and that the exclusive-remedy doctrine did not apply. The cir-cuk court transferred the matter to the Commission, as the Commission had the exclusive jurisdiction to determine appel-⅛⅛⅛ status under the law and whether the exclusive remedy doctrine applied.
A “g bf ^ ⅛ A“trative LaY Judge followed, whose findings were affirmed and adopted by the Commission, Various evidentiary objections were raised and ruled upon during the hearing. The ALJ ultimately found that appellant was an etaployee of CMB. The ALJ rejected Wilhelm’s contention that he wás an independent contractor of construction and welding services, The ALJ further rejected Wilhelm’s contention that CMB-. failed to secure workers’ compensation insur-anee, such that an exception to the exclusivity doctrine might be triggered,
The evidenee at the hearing upon which the„ALJ made these findings was as fol. lowg_ Linda Parsons, the wife of CMB’s 0TOier> ■ testified that she was the bookkeeper and did payroU and paid other bfflg for ⅛6 company. ghe stated that appel-¡ard worked with her husband and son, that he was sometimes reimbursed for travel expenses, and that he was paid based upon hours turned in to her each week, not by the job. Linda said that the |scompany sent appellant a 1099 each year and did not withhold any amounts from appellant’s weekly checks-. Payroll and bookkeeping records were submitted into evidence. Linda considered appellant an employee of CMB. She testified that CMB had procured workers’ compensation insurance coverage at the time of appellant’s injuries, although she said that the application did not specifically list any employees. Linda said that CMB- paid a $1,000 premium for this insurance coverage, which was purchased in case one of the people working for them was: hurt. Linda said that, right after the. work accident, she mentioned the workers’ compensation insurance coverage to appellant’s wife several times, offering to call CMB’s insurance agent, but thqt his wife refused, stating that she had her own. health insurance through Blue Cross and Blue Shield.
Two coworkers of appellant’s—Dennis Coburn and Jason Walker testified that they heard Linda tell appellant’s wife that CMB .had workers’ compensation insurance. Coburn and Walker also discussed the type of labor they provided to CMB, as well as the working conditions.
Chuck Parsons, owner of CMB, testified that CMB erects metal buildings and had been in business for ■ about ten years. Chuck said that appellant worked for him as a laborer, doing welding, lifting, hammering, and whatever needed to be done, some at the CMB shop and some at specific construction sites. Chuck acknowledged that appellant had his own hood, gloves, and welder, but said that he used both CMB’s and his own tools. He said that appellant used the company’s welder more than his own and that appellant was |4using company tools—a welder, rods, and platform—on the day of the injury. Appellant had been to this worksite a few days beforehand and was present with another worker at the direction of CMB on the day he was injured. According to Chuck, appellant was not required to bring his own tools to a job site.
Chuck explained that appellant would report to the CMB shop to get his work assignments each day. Although appellant was able to work independently, he was not doing specialized work and he (Chuck) had the authority to tell appellant what to do as part of the construction .crew. Chuck testified that he occasionally hired subcontractors to do specific jobs, paying them per job and not by the hour like appellant. Chuck confirmed hearing appellant’s wife decline using CMB’s workers’ compensation coverage. Chuck said that he was proud that he had his first workers’ compensation insurance policy.
Ray Parsons, Chuck’s son, testified that he acted as supervisor for CMB when his father was not there. Ray considered appellant an employee of CMB,-along with .the . other construction workers on the crew.. Ray said that appellant had his own equipment but that appellant infrequently used it on job sites. He stated that appellant used CMB. trailers to haul materials. Ray testified-that appellant had supervisory authority when he and his father were not on site, but that he (Ray) had the authority to tell appellant how to do his work if needed.
Jane Derden testified that she was an insurance auditor who performed an audit of CMB’s workers’ compensation insurance coverage provided by Technology Insurance • Company. Jane stated that CMB had such coverage in effect from April 2009 to April 2010. Her review of the file notes did not reveal that appellant was ever listed on the policy as an | ^employee. Her understanding was that if a person was left off the insurance policy, the insurance carrier could come back later to ask for additional premiums. The eighteen-page “Workers’ Compensation and Employers Liability Insurance Policy” was made part of the record.
Appellant’s wife, Barbara Wilhelm, testified that her husband was a contract laborer for CMB, going to CMB and doing the jobs they, assigned to him. She- denied ever being told that CMB had workers’ compensation insurance, and when her husband was admitted to the hospital, they (the hospital) asked for her insurance card. Barbara had told her own health insurance company that her husband’s accident was non-work related; Blue Cross and Blue Shield paid substantial sums for his care. She agreed that they had never attempted to file a workers’ compensation claim. -
Appellant testified that he believed him.self, and intended, ,to be a subcontractor for CMB, having his own. tools and driving his own truck to work. He did. not recall being reimbursed for travel expenses. Appellant claimed to work without supervision, but if Chuck or Bay told him to do something, he would do it. Appellant agreed .that he had worked almost exclusively for . CMB as a general laborer, not bidding on specific jobs but rather being paid, by the hour; that he went to the CMB shop every morning to get his job assignment; that Chuck and Ray supervised his work and had the authority to tell him where, when, and how to work on the job; that he never hired his own employees for jobs and had no authority to do so on a CMB job site; that he informed CMB if he was going to take a day off; and that he used CMB tools more often .than his own.
| ^Various objections to evidence and testimony were posited to the ALJ and ruled on at the time. . The ALJ reviewed the evidence and testimony presented, concluding that after consideration of the proper factors and legal authorities, appellant was clearly an employee of CMB for workers’ compensation purposes. The ALJ explained that the relationship described by all the witnesses constituted an employee/employer relationship, regardless of the titles used by each witness. The ALJ found the following to be compelling facts: (1) both Chuck and Ray had supervisory • authority over appellant, which was exercised at times; (2) appellant was part of a work crew of general laborers, reporting each morning to CMB for work assignments and using primarily CMB work tools; (3) appellant never engaged in a separate and distinct occupation or business apart from CMB, and he worked almost exclusively for CMB in the years leading up to this work injury; (4) appellant was a skilled welder but was not engaged in specialized welding on the CMB construction crew; (5) CMB’s business was in construction of buildings; and (6) appellant was paid by the hour and not by the job'.
As.to whether CMB would be subject to a tort-lawsuit because of a failure to secure payment of compensation, the ALJ determined that CMB had secured the payment of compensation by acquiring a workers’ compensation insurance policy that was undisputedly in effect at .the time of the work injury. The ALJ rejected appellant’s contention that the employer was required to prove that he (appellant) was personally insured a§ an employee under the policy and that the employer was required to prove that there was no fraud in attaining the coverage. The ALJ.further rejected appellant’s wife’s rcontention that she was never told about .the workers’ compensation policy or the possibility of filing this as .a ^workers’ compensation claim. The acquisition of a workers’ compensation policy was deemed satisfactory under the statutory requirement recited in Arkansas Code Annotated section 11—9— 404. ■
On appeal to the Commission, appellant contended that the ALJ failed to properly apply the factors in deciding whether he was an employee or independent contractor; failed to properly apply the statutory exception regarding procurement of workers’ compensation insurance coverage; and improperly curtailed his ability to present or cross examine witnesses. The Commission affirmed and adopted the ALJ’s decision, making no ruling oh whether the administrative hearing was conducted in an unfair manner. This appeal followed.
The standard of review in workers’ compensation cases is well settled. On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirms that, decision when it,is supported by substantial evidence. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, at 5, 368 S.W.3d 64, 68. It is for the Commission to determine where the'preponderance of the evidence lies. Id. Substantial evidence is evidence that a reasonable'mind'might'accept as adequate to’ support a conclusion. Id. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Id. It is exclusively within the province of the Commission to determine the credibility and the weight to be: accorded' to each witness’s testimony. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could hot have reached the | «conclusions arrived at by the Commission. Id. While not conclusive, the interpretation of a statute by an administrative agency charged with its execution is highly persuasive and will not be reversed unless clearly wrong. Lewis v. Calfrac Well Servs. Corp., 2015 Ark. App. 141, 457 S.W.3d 313; Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002).
The Workers’ Compensation Act, including the exclusive-remedy provision, is made possible by amendment 26 to the Arkansas Constitution, which amended art. 5, § 32. That amendment provides that the Arkansas General Assembly has the power to enact legislation prescribing the amount of compensation employers áre required to pay for injuries or deaths of employees. 'Essential' in this case is the General Assembly’s enactihent of Arkansas Code Annotated section 11-9-105, which states in relevant part that:
(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee —
(b) (1) However, if an employer fails to secure the payment of compensation as required by this chapter, an injured employee ... may, at his op- ' tión, elect to claim compensation under this chapter or to maintain a • legal action in court for damages on account of the injury or death.
Because the exclusive-benefits provision of our compensation law favors both the employer and the employee, we take a narrow view of any attempt to seek damages beyond that favored, exclusive remedy. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996). The question of whether an employer-employee relationship exists between the parties is a factual issue solely within the jurisdiction of the Commission. See Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006); D&M Const. Co. v. Archer, 14 Ark. App. 198, 686 S.W.2d 799 (1985). There may be substantial evidence to support the Commission’s decision even 1 ¡¡though we might- have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). The ultimate question in these cases is not whether the employer actually exercises control over the doing of-the work, but whether he has the right to control,: see Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943), and the resolution of the issue depends upon the facts of each case. Sands v. Stombaugh, 11 Ark. App. 38, 665 S.W.2d 902 (1984). Ordinarily no one feature of the relationship is determinative. Carter v. Ward Body Works, 246 Ark. 515, 439 S.W.2d 286 (1969). In Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264,, 269-70, 635 S.W.2d 286, 289 (1982), we listed some of the factors that may be properly considered:
(1) the right to control the means and the method by which the work is done;
(2) the right to terminate the employ^ ment without liability;
(3) the method of payment, whether by time, job, piece or other unit ofmeasurement;
(4) the furnishing, or the obligation to furnish, the necessary tools-, equipment and materials;
(5) whether the person employed is engaged in a distinct occupation or business;
(6) the skill required in a particular occupation;
(7) whether the employer is in business;
(8) whether the work is an integral part of the regular business of the employer; and
(9) the length of time for which the person is employed.
See also Webb v. Hot Springs Packing Co., 2013 Ark. App. 526, 2013 WL 5424861; Wright v. Tyson Foods, Inc., 28 Ark. App. 261, 263-64, 773 S.W.2d 110,110-11 (1989). The more the workeré occupation resembles the business of the employer, the more likely the worker is an employee. Cloverleaf Express v. Fonts, 91 Ark. App. 4, 207 S.W.3d 576 (2005).
The ALJ found appellant to be an employee and not an. independent contractor. . To the extent appellant is challenging this finding of fact on appeal, we have viewed the Imevidence'and all reasonable inferences in the light most favorable to the Commission’s findings,' and we affirm this finding as supported by substantial evidence.
. Appellant contends among other things that because CMB did not withhold state and federal taxes and other employee-type deductions and issued the appellant a 1099 instead of a W-2, appellant should be considered an independent contractor for workers’ compensation purposes. CMB may not have reported appellant’s employment status properly with the state and federal taxing authorities; however, those reports are not dispositive of whether -appellant is an employee or independent contractor for workers’ compensation purposes. Our case law is clear that the determination of employment status should be based on the factors set forth in Franklin v. Arkansas Kraft and not on factors or criteria from other' agencies or taxing authorities. While there are factors that could support either status, the ’evidence brought out at the administrative hearing, and credited by the ALJ and a majority of Commissioners, supports the conclusion that appellant was an employee for purposes of workers’ compensation law.
Moving to the primary focus of this appeal, appellant argues- that there lacks substantial evidence that CMB had secured workers’ compensation insurance coverage, such that the exclusivity doctrine would not apply. Appellant does not contest the -existence of a workers’ compensation insurance policy at the time of this work accident but rather contests whether he was actually covered by that -policy, We disagree that this was what was required under the relevant statute, and we affirm.
To explain, the relevant statute is Arkansas Code Annotated section 11-9-105(b)(1), which provides that “if an employer fails to secure the payment of compensation as required |nby this chapter” (emphasis added), the employee may file a tort action or file a claim for compensation. Specifically in Arkansas Code Annotated section 11-9-404, the Act defines how an employer meets its obligation to “secure the payment of compensation under this chapter,” and one such means is listed in subsection (a)(1) as “[b]y insuring and keeping insured the payment of the compensation with any carrier authorized to write workers’ compensation insurance[.]” Arkansas Code Annotated section ll-9-408(c)(l) provides that “No policy or contract of insurance shall be issued against liability under this chapter unless the policy or contract covers the entire liability of the employer.” Thus, unless the workers’ compensation insurance policy is void ab initio, versus merely voidable, then this coverage is in existence for the protection of an injured employee. See S, Farm Bureau Cas. Ins. Co. v. Tuggle, 270 Ark. 106, 603 S.W.2d 452 (Ark.App.1980). The statutory language is deliberately broad to effect that purpose, creating an insured status for an injured employee of virtually independent existence. Id. As stated in Seawright v. U.S.F.&G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982), for reasons of public policy there is an essential unity between the employer-and his workers’ compensation insurance carrier because otherwise, the employee might have two cases to litigate—one to establish the employer’s substantive liability and the other to show that the insurer’s policy actually covered that liability. Appellant acknowledges that the ultimate obligation to compensate an injured employee is placed squarely on the employer. Ark.Code Ann. § ll-9-401(b). This does not require that compensation for a workplace injury be actually paid in order- to effect the exclusive remedy. To hold in such a way adds a requirement not evident in the Act.
| ^Furthermore, the ALJ deemed Rankin v. Farmers Tractor & Equipment Co., 319 Ark. 26, 888 S.W.2d 657 (1994), to be compelling authority to reject' appellant’s contention that CMB did not “secure the payment of compensation.” In Rankin, our 'supreme court interpreted that statute to mean that if there was an employer/employee relationship and the employer provided’workers’ compensation coverage for its employees, then this satisfied the “secure compensation” wording in the statute. We are to strictly construe the workers’ compensation statutes "in Arkansas, Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008), and the wording of the statute has been interpreted and applied to mean that the employer must prove insurance coverage, not necessarily that an individual employee is in fact covered or in fact paid. Here, the question was whether there was a.workers’-compensation insurance policy in effect, and the answer is clearly yes. Appellant has failed to demonstrate clear error in the manner in- which the Commission has interpreted and applied the Workers’ Compensation Act.
Appellant’s arguments that point to alleged fraudulent behaviors by CMB to avoid paying proper premiums or to avoid payment of claims under the policy are issues between the Commission and the employer under Arkansas Code Annotated section 11-9-106, which provides for penalties for misrepresentations, including those related to obtaining coverage or avoiding payment of the proper insurance premium. There are other penalties available to assess against any employer who fails to properly secure compensation, as provided by Arkansas Code Annotated section 11-9-406. Or, perhaps, there may exist a dispute between the insurance carrier and CMB for CMB’s failure to report proper wages, which would result in "a retroactive premium adjustment as provided in the policy. In sum, |18we affirm the finding that the exception to the exclusivity doctrine does not apply here because, by a plain reading of section ll-9-105(b)(l), CMB secured payment of compensation as required, by this chapter by having, undis-putedly, a. workers’, compensation insurance policy in effect.
Appellant adds to this argument by stating that his wife could not waive his claim for him, nor was he required to report this injury because the employer was immediately made aware of the work injury. This goes to the statute of limitations, which appellant conceded had run if it had been filed as a-workers’ compensation claim. While the employer is duty-bound to report a worker’s injury to the Commission within ten days of notice of that injury, failure to report subjects the employer to the potential of a civil' penalty. Ark.Code Ann. § 11-9-529. This potential1 civil penalty does not equate to a tolling of the statute of limitations for purposes of a claimant filing a timely claim for compensation under the Act. See Chambers v. Int’l Paper Co., 56 Ark. App. 90, 938 S.W.2d 861 (1997). Appellant’s arguments do not relate to the issue herein, which is whether CMB “secured” the payment .of workers’ compensation benefits.
To the extent that appellant claims that construing the statute in this manner violates public policy, this argument is- not only presented for the first time on appeal but it ignores that the employer would remain liable for compensation had a claim been made.
Appellant, in his second point on appeal, argues that the ALJ conducted this hearing in an unfair manner, preventing the presentation of an expert witness, preventing adequate examination of witnesses, and wrongly permitting the workers’ compensation insurance carrier to participate in the hearing. We disagree.
IuThe insurance carrier,is permitted as a separate respondent in workers’ compensation proceedings. See Ark.Code Ann. § 11-9-405. It is entitled to present its case and be represented by' counsel, as well as to test the claimant’s proof. As to the adverse evidentiary rulings made during this hearing, suffice it to say that the Commission is not bound by technical or statutory rules of evidence or by technical or formal rules of procedure, but rather may conduct the hearing in a manner that will best ascertain the rights of the parties. Ark.Code Ann. § 11-9-705. The Commission must adhere to .the rules- of fair play, but our reading of the proceedings below reflects a fair and -full opportunity to present relevant evidence to, best ascertain the rights of the parties.
Appellant makes a blanket statement that the ALJ prevented him from adequately presenting his evidence and testing the opposing parties’ evidence with regard to the employer/employee relationship, but we discern no such unfair control over the proceedings. Indeed, appellant expounds in his appellate brief the extensive testimony and evidence presented at the hearing as to the character of appellant’s relationship with CMB and whether the factors supported his being an inde pendent contractor. Appellant presented the testimony-of eight witnesses and documentary exhibits that included insurance paperwork and the workers’ compensation liability policy, payroll records, insurance audit records, and photographs. Most of appellant’s complaints go to whether the appellant was a “named employee” under the insurance policy application. However, it was conceded that appellant was not listed. Appellant not being listed an as employee under the policy does not prevent the policy from being effective at the time of the accident. There was extensive discussion and evidence about CMB’s application for workers’ compensation ^coverage and the audit of that' policy after its issue. The transcript of the hearing is well over 200 pages long. The ALJ allowed the parties two weeks within which to file any posthearing briefs; the record does not disclose that any such posthear-ing briefs were filed. Appellant points to no relevant .evidence that was wrongly excluded or wrongly included. Appellant prevailed in some of his evidentiary requests, and his counsel was able to represent appellant’s position in a vigorous and thorough manner.
Because the decision of the Commission is supported by substantial evidence and does not manifest a violation of a fair and full opportunity to present evidence, we affirm.
Affirmed.
Harrison and Vaught, JJ., agree.
. The parties agreed that the two-year statute of limitations for filing a workers’ compensation claim had expired,
. Walker's testimony, a prehearing deposition, was submitted as joint exhibit by the parties. | [
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BART F. VIRDEN, Judge
li Bennie Whitehead appeals an order entered in the Pulaski County Circuit Court on May 27, 2015, that terminated his parental rights. We reverse and remand.
I. Facts
On August 14, 2014, the Pulaski County Circuit Court entered an ex parte order for emergency custody of M.B.l and his twin sister M.B.2 (born 8/1/14) due to reports that the mother, Tawana Bryles, was mentally unstable. No father was listed on the children’s birth certificates, and, at the time of the order, the father’s identity was unknown. On August 21, 2014, the circuit court entered a probable-cause order that named Bennie Whitehead as the putative father of the twins. In its order, the circuit court advised Whitehead that he had no | aright to an attorney at that time because the juveniles had not been removed from his custody, and the circuit court directed the Department of Human Services (the Department) to serve Whitehead with a copy of the petition and summons. Whitehead was served with a summons on September 23, 2014.
On September 25, 2015, the circuit court held a hearing on the matter, and an adjudication and disposition order was entered on October 13, 2015. The order directed the Department, Bryles, and Whitehead to “take appropriate steps to resolve the issue of paternity.” In the order, the Department was given the following instruction: “make all referrals and ensure that the referrals are sent to the appropriate provider(s) within ten (10) days.” The circuit court also noted that “Putative father, Bennie Whitehead, does not want to participate in any services until he has had a DNA test and is found to be the father of the juveniles.”
A review hearing took place on January 29, 2015, and the circuit court entered its written order on February 5, 2015. In its order, the circuit court found that Whitehead was in compliance with its order and the case plan, as was the Department; however, the circuit court noted that the Department had testified that no DNA test had been performed at that time but that Whitehead’s DNA test was set for February 20, 2015. In its order, the circuit court denied Whitehead’s request to visit the children, and it found that “if the DNA test results determine Mr. Whitehead is the juveniles’ biological father; he shall visit the juveniles, as arranged by him and DHS. Those visits shall be supervised by DHS and shall occur once beach week for one (1) hour....” The circuit court also found that “Mr. Whitehead, the putative father, has not established significant contacts with the juvenile; therefore, putative rights do not attach, and he is not entitled to a court appointed attorney for representation at the termination of parental rights -hearing.- He is advised of the right to hire an attorney for the termination of parental rights adjudication.” The circuit court directed the Department to file the termination-of-parental-rights petition during the week of February 20-27, 2015, (the same week during which Whitehead’s DNA test was scheduled to occur), and it- set the date for -the termination hearing for May 7, 2015.
The Department filed the petition for termination on February 24, 2015, four days after Whitehead’s DNA test had been performed. The Department noted that Whitehead’s parental rights had not been established and that the circuit court found that Whitehead had not proved significant contacts; therefore, Whitehead’s parental rights as a putative father had not attached. The Department also requested that Whitehead’s parental rights be terminated along with Bryles’s due to subsequent factors that had arisen since the case had begun. Specifically, the Department alleged that Whitehead had been ordered to establish his paternity, arid he had not complied with this order. The Department also alleged that “Mr. Whitehead has stated that he does not want services until he has scientific evidence that the children are biologically his. He has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate his circumstances.”
The Department filed an amended petition for termination of parental rights on April 24,. 2015. In its petition, the Department alleged that Whitehead had delayed the DNA testing, though the Department did not state how Whitehead was responsible for the delay. |4The Department also alleged that Whitehead had shown indifference to remedy the subsequent factors. The Department alleged that Mr. Whitehead had failed to keep in contact with the Department at the time the amended petition was filed. In the petition, the Department stated that ’“aggravated circumstances” grounds also existed as to . Whitehead:
Mr. Whitehead delayed providing DNA testing in this case ¡which has resulted in him becoming a possible participant at the 11th hour. At the time of this filing, Mr. Whitehead has not kept in contact with the Department in order to do everything he can to get. his child placed with him.
The termination hearing was held on May 20, 2015. The circuit court acknowledged that Whitehead had been present at all of the hearings. The circuit court notr ed that he had requested that he be offered no services because he wanted to wait and see if a DNA test proved that he was the father of the children. The court stated that because he refused services, his request for visitation was denied until he was determined to be the biological father. The circuit court, found that Whitehead had not established significant contact with the child, therefore his putative rights had not attached.
The attorney ad litem urged the court to proceed carefully as to the issue of how Whitehead’s rights were disposed of, if he had any:
[WJe do believe that he has- had enough contact that we would want to proceed with caution and terminate any rights that he might have with the two grounds that Ms. Johnson mentioned. Of course, the court could always find that no significant contacts have attached and dismiss him that way—
In response, the court stated, ■.
The fact that he is the biological father with DNA testing does not elevate him to the right of a parent. He’s not a parent yet; he’s not a' legal father until there’s ■ a determination of paternity, that’s, with a court order or a paternity acknowledgment. He doesn’t have any one of those that I know of and he may, and that’s what I need to find....
|fiThe court questioned Whitehead to resolve the question of whether he had established either paternity or significant contact' with the child. Whitehead explained that he had taken thé DNA test and that he had received the results “a month dr two ago,” Whitehead testified that when he had received the notification, he had arranged visitation, and he had taken advantage of each of the three visits he had been allotted..
The circuit court asked Whitehead if he had an order of paternity showing that he was the legal father. Whitehead attempted to present the court with his DNA test results, and the circuit court informed him that a DNA test was insufficient and that a court order of paternity was necessary.
The Department moved that Whitehead be dismissed from the case based on the circuit court’s finding that he had not established significant contacts such that parental rights would attach. The circuit court stated from the bench that, as long as it found no putative rights attached, dismissal was appropriate. The circuit court noted that the mother’s rights had already been terminated in a separate order; therefore, testimony concerning the best interest of the child and the child’s adoptability was not necessary for the proceedings.
The circuit court entered an order terminating Whiteheád’s parental rights on May 27, ’2015. In the order, the circuit court found that Whitehead had not established significant contacts with M.B.l; therefore, no 'parental rights had attached, and Whitehead had no parental rights to terminate. The circuit court also found that “any rights that those two putative fathers have or may have, are hereby terminated.” The court found that Whitehead neither possessed an order of paternity, nor had he executed an acknowledgment .of paternity. The court found that Whitehead had not wanted to participate in any services until he was |fifound to be the biological father, and that it had denied his request for visitation until the DNA test had been performed and the results had confirmed that Whitehead was the father. The circuit court noted that , after he received his results, he had “only visited the juvenile three times” and that “three visits does not significant contacts make. Mr. Whitehead let time go by while he was awaiting paternity testing to see if he was the biological father.” Again, the circuit court noted that Whitehead had no parental rights to terminate; therefore, the circuit court was not required to make findings regarding potential harm or adoptability as it would in a termination proceeding. The circuit court found that the bonds between the putative fathers and the juveniles had been formally severed by the order. It is from this order that Whitehead appeals.
II. Points on Appeal
Whitehead asserts three points on appeal. First, Whitehead argues that the circuit court erred in finding that he had not established significant contacts sufficient for his parental rights to attach. Second, Whitehead asserts that because his parental rights attached, the circuit court erred in failing to address the statutorily mandated factors required' prior to terminating parental rights, and the circuit court erred by not appointing counsel prior to the termination hearing. ■ In the ■ alternative, Whitehead argues that if his parental rights had not attached, he should have been dismissed as a party prior to termination, and thus, the circuit court erred in entering an • order terminating parental rights that did not exist.
We agree with Whitehead’s third,.alternative argument; therefore, we reverse and remand.
|7A. The Order Terminating Bennie Whitehead’s Parental Rights
1. Standard of review and applicable law
This court reviews termination orders de novo. Strickland v. Ark. Dep’t of Human Servs., 103 Ark.App. 193, 287 S.W.3d 633 (2008).
Arkansas Code Annotated section 9-27-303(47) defines “putative father” as any man not deemed or adjudicated under the laws of the jurisdiction of the United States to be the biological father of a juvenile who claims to be' or is alleged to be the biological father of the juvenile. The U.S. Supreme Court has ruled that putative fathers do not have the same protections as do legal parents. As Judge Stewart wrote, “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
Before a mother or a legally established father is subject to having parental rights terminated, the Arkansas termination statute requires the Department to prove that termination is in the child’s best interest, and one of the grounds for termination must be proven. Ark.Code Ann. § 9-27-341 (Supp.2015). However, if the biological or putative father has not established paternity, he is placed in a different legal position. If no legal rights have been established, a putative parent must prove that significant contacts existed with the juvenile in order for the putative parent’s rights to attach. Ark.Code Ann. § 9-27-341(c)(2)(A)(ii). The statute protects putative fathers who may have lived in the same home as their child from having their parental rights automatically terminated.
When the putative father’s rights have attached, they cannot be terminated without Isproviding the putative father notice of the hearing or without first giving him the opportunity to be heard. These rights are reflected in Ark.Gode Ann. § 9-27-341(B)(i)(ii) and (iii).
2. Analysis
The circuit court stated from the bench during the termination hearing that although Whitehead had performed a DNA test, he had neither executed an order of paternity, nor established sufficient contacts such that his parental rights had attached. In the May 27, 2015 order, the circuit court reiterated its finding that Whitehead had not established significant contacts such that his parental rights had attached. It also found that Whitehead’s parental rights were terminated.
A similar issue was recently before this court. In Wright v. Arkansas Department of Human Services, 2014 Ark. App. 676, 449 S.W.3d 721, the appellant argued that the circuit court erred when it terminated his parental rights because a DNA test showed that he was not the father of the child at the center of the case. This court agreed, and held that “he was not a proper party to proceed against with a termination-of-parental-right§ action.” Id., 2014 Ark. App. 676, at. 9, 449 S.W.3d 721, 726.
In the present ease, we hold that the circuit court similarly erred in terminating Whitehead’s parental rights. The circuit court found that three hour-long visits was not sufficient to establish significant contact such that his parental rights had attached; thus, the circuit court found that Whitehead had no parental right's to terminate. For the circuit court to then terminate parental rights it found to- be nonexistent was in error.
Whitehead urges this court to also consider the issue of whether he established ^Insufficient .contact with M.B.1 such that his parental rights attached. We cannot reach the issue at this time, because no order of dismissal based on whether or not he had established significant contacts was made by the circuit court for us to review. With that in mind, we reverse the order of the circuit court, and we remand the matter for further proceedings to determine the status of Bennie Whitehead’s parental rights.. Whitehead also argues on appeal that because his parental rights were’ terminated, he was entitled to an attorney to represent him at the termination hearing and that the court was required to perform ■ the statutorily required .analysis of the best interest of the child and the child’s adoptability. Because we hold that termination was not proper under thése circumstances, we do not consider these issues.
Reversed and remanded.
Abramson and Whiteaker, JJ., agree.
. In April 2015, DNA test results showed that Whitehead was the father of only one of the twins, M.B.l. Until that time, the parties involved in the case assumed that Whitehead was the only putative father. After this discovery, a man known only as "Sunny” was named a putative father, and he is not involved in this appeal. | [
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PER CURIAM
hln 1974, petitioner Wayde Earl Stewart, who is also known as Wade Earl Stewart, and a codefendant, Tommy McGhee, were found guilty by a jury in the Pulaski County Circuit Court of murder in the first degree committed in the perpetration of an attempted robbery. Both men were sentenced to life imprisonment. ’ We affirmed. Stewart v. State, 257 Ark. 753, 519 S.W.2d 733 (1975).
Now before us is Stewart’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. 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 | pis an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are at tended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
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, 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 npbis is available for addressing certain errors that are found in pne. 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.
Evidence'adduced at trial reflected that Stewart and McGhee went to the victim’s apartment to take drugs from him. Stewart was armed with a sawed-off shotgun and McGhee carried a .38-caliber pistol. A witness testified that he saw McGhee pull his pistol on the victim, who raised his hands. Stewart then jumped over a porch railing, and the shotgun discharged, striking the victim in the chést. The witness immediately heard several small-caliber shots. Another witness, who was living with the victim, testified that she heard one loud shot and three other shots, and the victim ran into the apartment. The victim | (¡spontaneously told her that one man had flashed money in his face, then the other had jumped onto the porch and shot him with a shotgun, and the first man had shot him with a pistol.
The victim was admitted to the hospital with a shotgun blast to the chest and pistol wounds to his wrist and knee. Following removal of one lung, the victim was placed in intensive care. Five days later, additional surgery was performed to remove several ribs to curtail infection. After five more days in intensive care, the victim died. Without notification to the state medical examiner, the victim, was partially embalmed before an autopsy was performed by an anatomical pathologist, who had performed over 300 autopsies in his career. The pathologist testified that the victim died from a blood clot in the pulmonary artery and that the clot resulted either from the surgery om the gunshot wound that necessitated the surgery. Needle marks were found on the-victim’s legs, which Stewart and McGhee contended indicated that the victim was a drug user. The doctor testified that an improper injection of drugs could have caused the death and that the embalming procedure could' have nullified the presence of drugs. The victim’s personal physician testified that in his opinion, the blood clot that caused the victim’s death was secondary to the gunshot wound to the chest.
Stewart and McGhee gave separate written statements to the police. Stewart admitted that he had been armed with a shotgun and that he had gone to the victim’s residence with McGhee with the intent to rob him. McGhee wrote that he, while armed with a pistol, went with Stewart and other persons to the apartment, told the victim that they wanted' drugs, that someone in the group said that they would take the drugs if the | ¿victim would not give the drugs to them, and that a shotgun blast followed. McGhee also said that the pistol had gone off, but he did not know where the bullets had struck. This court held on direct appeal that there was sufficient evidence to sustain the judgment that Stewart and McGhee committed murder in an attempt to perpetrate a robbery. Stewart, 257 Ark. 753, 755, 519 S.W.2d 733, 735.
As grounds for a writ of error co-ram nobis, Stewart alleges that the State withheld evidence from the defense at trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Stewart contends that the following evidence is at issue: (1) opinion evidence, provided by the doctors, that prejudiced him; (2) inadmissible evidence that was permitted into the record; (3) evidence that did not “adhere” to the cause of death, that is, evidence that death resulted from the victim’s own misconduct and not the gunshot wound to his chest; (4) evidence that the body was quickly and illegally embalmed, which masked the actual cause of death; (5) evidence that was misleading and confusing; (6) evidence that was insufficient to prove that a blood clot caused the victim’s death; (7) evidence provided by the victim’s girlfriend that, at a time when he had been released from the hospital after fully recovering from the gunshot wound, she injected him with drugs and that the blood clot was the result of the injection. A review of the Brady claims suggests that Stewart has misconstrued the nature of a Brady violation and the purpose of a coram-nobis proceeding.
A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), thé Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the | ^petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280,119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth- to - those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.
Here, there was clearly no violation of Brady because Stewart has not shown that there was any evidence withheld from the defénse; rather, the evidence he discusses in his petition was clearly known at the time of trial. He has fallen far short of establishing there was some material evidence withheld that wouíd have prevented rendition of the judgment had it been known at the time of trial. See Isom, 2015 Ark. 225,462 S.W.3d 662.'
Stewart next makes the con-clusory statement that he has ¿ever been legally competent. If the allegation can be said to be an assertion of insanity at the time of trial, Stewart has presented no facts süffícient to demonstrate that there was inforiñátion not known at the time of trial, or which could not have been known at the time of trial, that could have established that he was incompetent to proceed. The application for coram-nobis relief must make a full disclosure of specific facts relied upon as the basis for the writ inasmuch as statements that are not supported by facts are- not a ground for the writ. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam).
Throughout his petition, Stewart argues that the trial court erred by accepting inadmissible evidence into the record and by committing numerous other errors. Trial | (¡error, by its very nature, is an issue that could have been settled at trial and on the record on direct appeal. Johnson v. State, 2015 Ark. 170, at 4, 460 S.W.3d 790, .794 (per curiam). For that reason, allegations of trial error, even of constitutional dimension, are not within the purview of a coram-nobis proceeding. Grant v. State, 2015 Ark. 323, at 3, 469 S.W.3d 356, 358 (per curiam). Again, a coram-nobis proceeding is limited to the four categories set out above. Franklin v. State, 2015 Ark. 455, at 3, 476 S.W.3d 786 (per curiam).
' Stewart, who concedes that he shot the victim, also contends repeatedly that the evidence was insufficient to, sustain the judgment of conviction and that it was a violation of the Eighth Amendment prohibition, against cruel and unusual punishment to convict him on inadmissible, insufficient evidence. He particularly argues that the cause of death was not proven to be the gunshot wound to the victim’s chest, and he asks this court to appoint .an attorney to represent him and order the victim’s body to be exhumed for further testing to prove his actual innocence. These assertions do not state a ground for the writ. The sufficiency of the evidence is not an issue cognizable in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6,. 461 S.W.3d 313 (per curiam). Whether the evidence supports the judgment is a question to be addressed at trial, and .eoram nobis does not provide a second opportunity to challenge the evidence. See Bond v. State, 2015 Ark. 470, 477 S.W.3d 508 (per curiam).
Finally, Stewart raises numerous claims of ineffective assistance of counsel in his petition. The allegations are also not within the scope of a coram-nobis proceeding. Assertions of inadequate counsel are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1. Noble v. State, 2015 Ark. 141, at 8,460 S.W.Sd 774, 779. We 17have consistently held that a petition for writ of error coram nobis is not a substitute for raising claims of ineffective assistance of counsel under Rule 37.1. Id,
Petition denied.
. Stewart states that in 2005 his sentence was commuted to a term of 118 years’ imprisonment. | [
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BART F. VIRDEN, Judge
|, The Greene County Circuit Court terminated appellant William Norton’s- paren tal rights ■ to his daughter S.N. (DOB: 6/7/2011). On appeal, Norton challenges the sufficiency of the evidence supporting the grounds for termination. We- affirm.
I. Procedural History
On August 15, 2013, the Arkansas- Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect, In an affidavit attached to the petition, Kandi Tarpley, a DHS family-service worker, indicated that a report had been made to the child-abuse hotline on August 12, 2013, regarding the death of S.N.’s three-week-old sibling the previous day. Tarpley was asked to conduct a safety assessment of then two-year-hold SIN. who lived in the home. Tarpley learned from a probation officer that Norton had earlier that day tested positive for barbiturates, benzodiazepines, and opiates. The probation officer informed Tarpley that Norton had a prescription for hydrocodone filled on July 31, 2013, and that 100 pills were missing. She also said that Norton had taken thirty-nine Xanax pills over the course of twelve days. Tarpley further testified that she had contacted S.N.’s mother, who was staying at Mission Outreach because of a no-contact order in place between her and Norton.
The trial court entered án ex parte order for emergency custody and subsequently found probable cause to remove S.N. from the home given the emergency situation. On October 24, 2013, the trial court adjudicated S.N. dependent-neglected, to which the parties stipulated. ■ In an agreed review order entered February 10, 2014, the trial court found that Norton had partially complied with the case plan but had failed to resolve all of his criminal issues and had failed to obtain and maintain stable housing. Following a July 31, 2014 hearing, the trial court entered an agreed permanency-planning order indicating that, based on Norton’s- immediate attempt to receive services upon his release from incarceration, he would receive three additional months of services.
After a hearing held on December 16, 2014, -the trial court entered a- fifteen-months’ review- order finding that the parents had not complied with the case plan and court orders in that they had refused to submit to drug testing and had no home for more than one year to which S.N. could be returned.. The trial court changed the goal of the case from reunification to termination. On February 27, 2015, DHS filed a petition to terminate [sparental rights with respect to both parents. A termination hearing was held on June 25, 2015.
II. Termination Hearing
Holly Johnson, DHS family-service worker, testified that S.N., had been out of the parents’ custody for almost two years. She stated that Norton had not complied with the case plan in that his stable housing was in the Greene County jail; he was unemployed; and he remained in contact with DHS only due to his -incarceration. Johnson stated that, when Norton was not incarcerated, he had visited with S.N. on a regular basis. She also testified that from October 2013 through April 2014, Norton had tested positive for drugs; from June 2014 through August 2014, he had tested negative for drugs; and from October 2014 through December 2014, he had refused to submit to drug testing. Johnson conceded that Norton had not been asked to submit to a drug test since December 2014 but noted that Norton had remained incarcer ated since December 22, 2014. Johnson further testified that Norton had a history of public intoxication, DWI, careless driving, criminal mischief,, disorderly conduct, domestic battery, resisting arrest, and probation revocation.
Norton testified that he had received an eight-year sentence for second-degree domestic battery of his wife. ■ Norton 'stated that, before he was incarcerated, he had been taking Xanax and Tylenol 3, but he claimed that he did not know why. He said that he had “been to two rehabs and they were short” but that he had not been offered-drug treatment while in jail. Norton admitted that he was unable to provide S.N. with a stable home life.
Following the hearing, the trial court found that termination of parental rights was in |4S.N.’s best interest and found two grounds, on which to terminate Norton’s rights. The two .grounds applicable to Norton are listed in Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp.2013):. '
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (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.
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family. , services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in.the custody of the parent.
Ark.Code Ann. § 9-27-341(b)(3)(B)(i) .& (vii).
Specifically, as to the first ground, the trial' court found that Norton had been abusing controlled substances at the time S.N. was removed from his custody, that since August 2014 Norton had refused to submit to drug testing,' that he had not obtained a residence, and that he currently had unresolved criminal issues. Regarding subsequent issues, the trial court noted that Norton had been arrested for DWI on April 18, 2014, and convicted; that he had failed to complete an outpatient, substance-abuse treatment plan “and terminated his mental health therapy without completion”; that he had refused random drug screens since August 2014 in violation of the case plan and the court’s orders; and that he was currently incarcerated.
III. Standard, of Review ,
In order tó terminate parental rights, a trial court must find by clear and convincing | ^evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is- granted,. and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). Additionally, the trial court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. - § 9-27-341(b)(3)(B). However, proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
[2-6]\ Termination-of-parental-rights cases are reviewed de novo. Fenstermacher v. Ark. Dep't of Human Servs., 2013 Ark App. 88, 426 S.W.3d 483. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when,, although there is evidence ¡to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Termination of parental rights is an-extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment- or destruction of the health and well-being of the child. Id.
IfilV. Discussion
A.. Failure to Remedy
Norton asserts that'his use of controlled substances had been remedied. He contends that ’the fact that he had refused drug tests over a forty-eight-day period in 2014 is not clear and convincing proof that he was -misusing drugs at the time of the termination hearing in June 2015. Next, Norton points out that there was. no evidence that the no-contact order had been violated after the case was opened and, because there- was no evidence that -his wife had been battered again-, he asserts that the behavior-that resulted in the no-contact order had been remedied.
The trial court could have reasonably concluded that, given Norton’s repeated refusals to take a drug test, his drug abuse had not been remedied. -Although Norton asserts that his drug abuse and violent behavior had been remedied, we note that Norton was' incarcerated for extended periods, which is not the remedy contemplated by- our termination statute. We hold that the trial court did-not clearly err in determining that the causes for S.N.’s removal from-the-home had not been remedied. ■ . ■ .
Moreover, Norton makes no argument about his failure to remedy his lack of stable housing. He admitted that he could not provide a home for S.N. The intent of our termination statute is to provide permanency in a juvenile’s life in all circumstances where return to the-family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to thé-family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark.Code Ann. § 9—27—341(a)(3). 17At the time of the termination hearing, Norton was still incarcerated and had no home. His lack of stable housing for S.N. is reason enough to affirm on the failure-to-remedy ground.
B. Subsequent Factors
We will briefly address Norton’s argument on the second ground for termination, although only one ground is necessary.- Gossett, supra. Norton contends that the-four subsequent-issues listed by the trial- court had been remedied. First, he contends • that there was no document and no testimony proving that he had been arrested for or convicted of DWI. We agree; however, Norton did not óbject to -the case worker’s testimony as to his criminal history; To- preserve an objection for appeal) a timely and appropriate objection must be made. Rodriguez v. Ark. Dep’t of Human Servs., 360 Ark. 180, 200 S.W.3d 431 (2004). Second, Norton argues that there was no evidence that he was ordered to attend therapy. Norton is correct; however, other unremedied subsequent factors were present. Third, he argues that not taking drug tests for “a mere 7% of the entire case—sandwiched between extremely long periods of no drugs isn’t clear arid convincing evidence that the issue wasn’t remedied.” In refusing even one test, Norton disobeyed a court order despite knowing that his submission to the tests was a condition of getting his child back. Fourth, 'Norton contends that his incarceration was not a subsequent factor because he had battered his wife before the case had been opened; however, Norton’s punishment for battery—his incarceration—covered a period of time that was subsequent to the ease’s having been opened.
Also, Norton complains that the trial court did- not find that DHS had offered ^appropriate family services to remedy his incarceration. Assuming such services even exist, the trial court made numerous findings that DHS had made reasonable efforts to provide services to Norton. A failure to challenge the court’s prior “meaningful-efforts” findings precludes this court from now reviewing any adverse rulings resulting from those orders not appealed from. Jones-Lee v. Ark Dep’t of Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261.
Affirmed.
Kinard and Glover, JJ., agree.
. S.N.’s mother, Erica Norton, consented to the termination of her parental rights. Despite her consent, the trial court involuntarily terminated her rights at DHS’s request. She is not a party to this appeal. | [
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Brandon J. Harrison, Judge
| iThis appeal arises out of an-automobile collision where appellant Eileen Madden was ejected from her vehicle and sustained serious injuries. Madden sued the manufacturers and sellers of her vehicle and its seatbelt in the Jackson County Circuit Court alleging that her seatbelt was defective, that the defect caused her seatbelt to come unlatched during the collision, and that this defect proximately caused her injuries. She appeals from orders granting summary judgment to the manufacturers and sellers of her automobile and its seatbelt. We affirm.
I. Facts '■
Madden and her now-deceased husband, Norman, bought a used 1998 Mercedes-Benz ML320 automobile from Little Rock Wholesale in October 2004. The Bill of Sale indicated that they bought the vehicle “as is.” Prior to the purchase, the vehicle’s seatbelt buckle was the subject of a recall campaign. The campaign was initiated after a | ^determination that the seat-belt buckle tabs in these vehicles had potentially been improperly staked- during the manufacturing process, and. the improper staking could cause the seatbelt buckle to unlatch. Pursuant to the recall campaign, this .vehicle was inspected by Scott Reid in August 2003; • he determined that the defect was not present. This -is pertinent because on 20 March 2007, while driving the vehicle, Madden had an automobile collision with Christopher Taylor. Madden was ejected from the vehicle and was seriously injured. Although'Madden maintains that she habitually- wore her seatbelt—arid there is evidence indicating that her injuries áre consistent with seat-belt usage—the police report from the collision indicated that she was not wearing a seatbelt. '
Madden spent many weeks receiving acute care for her injuries. During that time, the vehicle was determined to be a total loss, and Norman transferred the title of the vehicle to their insurance carrier on 17 April 2007. The insurance carrier then scrapped and sold the vehicle. This sale occurred without an inspection of the vehicle or its seatbelt for potential defects.
Madden filed her initial complaint on 24 May 2007, suing only Christopher Taylor for negligence. Later, Madden amended her complaint to iriclude additional defendants; Mercedes-Benz U.S. International, Inc., Mercedes-Benz" USA, LLC, TRW Vehicle Safety |3Systems,- Inc. , Little Rock Wholesale, Robert Vowell, and Sandra David .' She pursued causes.of action for negligence; products liability, and breach of warranty against Mercedes, TRW, and the LRW defendants alleging that her vehicle’s seatbelt was defective, the defect caused her seatbelt- to become unlatched during the collision, and the defect proxi-inately caused her injuries.
On 15- October 2012, Mercedes and TRW filed a joint motion for summary judgment seeking.the dismissal of all of Madden’s claims against them. . Mercedes and TRW generally argued that the presence of a defect was a necessary element of each of her claims and that she; failed to offer evidence of a defect in the seatbelt attributable to either of them. The circuit court granted Mercedes and TRW’s joint motion for summary judgment on 24 June 2014. On 21 July 2014, Madden filed a motion for clarification of this order. In her motion, she asked" whether the court intended to grant summary judgment to Mercedes and TRW on the breach of warranty claims. The court answered that its original order granted summary judgment to Mercedes and TRW on all claims, including the breach-of-warranty claims, in an order dated 15 October 2014.
The LRW defendants moved for summary judgment on 30 June 2014. They adopted by reference -the motion for summary judgment filed by Mercedes and TRW and all exhibits attached to it. Like Mercedes and TRW,, they argued that Madden could not Lprove a. defect in the vehicle attributable to.them. -Additionally, LRW defendant Robert Vowell asserted that he was not a proper defendant in this action because he neither bought nor sold the vehicle. This motion was granted in its entirety in an order entered on 16 October 2014- Maddens timely appeal of the orders granting summary judgment to Mercedes, TRW, and the LRW defendants on all claims followed.
II. Standard, of Review
On appeal, 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 question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the' moving party. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). Once the moving party has established prima facie entitlement, to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. The court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). A 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, 237 S.W.3d 455 (2006).
III. Summary Judgment in Favor . ' of Mercedes and TRW
Madden challenges -the circuit court’s order granting suipmary judgment in favor of Mercedes and TRW arguing that (1) she submitted, proof that Mercedes and TRW supplied | ,Jhe seatbelt in a defective condition, and (2) the circuit court improperly granted summary-judgment on her breach of warranty claims.
A. The Products-Liability Claim
To prevail in a products liability case against a supplier, a plaintiff bears the burden of proving both (1) that the product was defective when it left the de fendant’s control such that it was unreasonably dangerous and (2) that the defect caused the injury. Ark. Code Ann. § -4-86-102 (Repl. 2011); Higgins v. Gen. Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). For our purposes, the key question is whether the seatbelt was defective when it. left the control of Mercedes and TRW.
The facts of this case make it difficult to establish a factual dispute on the presence of a defect. The vehicle and its seatbelt are no longer available, and they were never inspected by an expert for áhy party. In the absence of direct proof that the product is defective because of a manufacturing flaw, Arkansas law requires that Madden offer “substantial evidence” that “negates other possible causes of failure of the product not attributablé to the defendant.” Higgins, supra. “Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion and conjecture.” Id. Madden is not required to eliminate all other possibilities— and she need not prove her case beyond a reasonable doubt,—but she must present evidence from which a jury can conclude that it is more probable than not that this occurred. Id.
The burden of sustaining a motion for summary judgment always rests with the moving party. New Maumelle Harbor, supra. Mercedes and TRW established a prima facie [ (¡entitlement to summary judgment by attaching to their motion the police report from the collision indicating that Madden was not wearing her. seatbelt, information indicating that -the vehicle was no longer available for inspection, and records from Scott Reid’s 2003 inspection of the vehicle showing that a defect in the seatbelt was -not- found. Most notably, Mercedes and TRW also relied on Madden’s own expert’s testimony to negate the presence of a defect attributable to them. Specifically, Madden’s expert, Gerald Barnett, testified that he would have to be “a psychic” to determine whether a seatbelt-latch problem existed when the vehicle was new or whetheri.it was introduced later. Because Mercedes and TRW’s joint motion for summary-judgment established a pri-ma facie entitlement to summary judgment, the burden shifted to Madden to present some evidence of a defect attributable to Mereedes and TRW.
To begin, Madden clearly calls into question whether ‘she' was wearing her seatbelt during the collision. She testified that it was-her habit-to wear it, and Dr. Frank Peretti, testifying in his role as the associate medical examiner- at the Arkansas State Crime Laboratory, stated that her injuries were consistent with ■ seatbelt usage. Nevertheless, evidence that Madden’s seatbelt came unlatched during the collision does not, in and of itself, equate to evidence of a. defect when the seatbelt was manufactured or supplied,
In an attempt to question the functionality of .her seatbelt, (Madden highlights the recall campaign for defective seatbelts that includéd her vehicle. The recall itself is insufficient evidence of a defect in the seat-belt. Scott Reid performed theirecall inspection on the vehicle and found no defect present. He testified that he performed the inspection properly. Madden points out the short amount of time Reid dedicated to the inspection, |7but she offers no evidence that -his' inspection was inadequate or improper. Gerald Barnett even ■testified that he had'the opinion that Reid performed the buckle inspection properly.
The other evidence Madden relied on to refute Mercedes and TRW’s motion for ■summary judgment primarily comes from her expert witness, Gerald Barnett. Barnett said - through deposition testimony that he thought her seatbelt became unlatched during the collision and' 'that a defect present at manufacturing can appear long after a seatbelt leaves a supplier’s control. - He attempted to negate the possibility that some action by Madden or another third party could have caused the seatbelt to unlatch when he testified-that a foreign object or spill would have caused the seatbelt to not latch at all, but he later testified that a foreign object or spilled drink could cause a seatbelt to merely latch improperly. And, he testified that he could. not answer whether the defective condition., in the. seatbelt buckle existed when the car came off the factory floor; he even , stated that he’d have to be “a psychic” to know whether the defect was present at this time. Barnett also said he would need to examine the seatbelt to do more than speculate as to the cause of the belt, unlatching.
In a motion for summary judgmént, once the moving party establishes prima facie entitlement to summary' judgment, the opposing party must meet proof with proof and demonstrate the existence of a material fact. New Maumelle Harbor, supra. Here, Madden failed to place a material fact on an element of her claim in dispute. Even if she had worn her seat-belt during the collision and the seatbelt unlatched because of a-defect, she cannot establish that this defect was present when it left Mercedes and TRW’s control. The evidence she presented would require a jury to speculate regarding the cause of the alleged 18defect. Therefore, we affirm the circuit court’s dismissal" of Madden’s products liability claims against Mercedes and TRW.
B. The Breach-ofWarranty Claims .
Madden also argues that ■ the breach- of warranty claims were not properly raised by Mercedes and TRW in their motion for summary judgment nor were they, properly decided by the court. She contends that their motion for summary judgment does not specifically address the viability of her breach-of-warranty claims.
We disagree. ' Here, Mercedes and TRW sought summary judgment on all claims by arguing that Madden failed to present any evidence of a defect when the vehicle was manufactured. The existence of a defect is a common and necessary-element for all of the claims, and without this evidence, Madden’s, case against .-Mercedes and TRW fails. Moreover, Madden’s motion for clarification gave the circuit court the opportunity to consider whether summary, judgment on the breach-of-warranty claims was proper; and it entered an order expressly granting judgment, to Mercedes and TRW. on her complaint as a whole. We hold that the viability of Madden’s breach-of-warranty claims was properly considered and ruled on by the circuit court,
With that determination made, we turn to whether summary judgment on the breách-of-warranty claims was appropriate. Here, Madden argues’ that the burden for' proving products liability is greater than that of breach of warranty. However,' breach of warranty and strict products liability claims are “essentially the same” insofar as both require a product defect attributable to the defendant. Higgins, supra. Mercedes and TRW consistently argue that summary judgment is appropriate because Madden failed to present |9evidence of a defect, and the presence of a defect is a -common element essential to both claims. We agree. A court is not required to address or negate every element of a claim. Golden Tee, Inc. v. Venture Golf Schs., Inc.; 333 Ark. 253, 969 S.W.2d 625 (1998). Mercedes and TRW offered argument and evidence to the circuit court on whether there was a defect, and a determination that there is no evidence of a defect is sufficient to resolve the outcome of each of -the claims presented. We hold that the court did. not err when it disposed of the breach-of-warranty claims against Mercedes and TRW.
IV. Summary Judgment in Favor of the LRW Defendants. .
Madden also raises several challenges to the court’s order granting summary judgment to the LRW defendants. First, she contends that the court erred in granting summary judgment'on her products liability claim against the LRW defendants because she submitted proof that the LRW defendants supplied the seatbelt' in a defective condition. She also contends that the circuit court erred in granting summary judgment on her breach of warranty claims against the LRW defendants. For this point, she argues that (1) the LRW defendants waived any defense related to .disclaimer of warranties,' (2) th'e “as is” clause in the bill of sale was insufficient for the LRW defendants to disclaim all warranties, (3) the defective seatbelt amounted to a latent defect that could not be disclaimed, (4) her.-express-warranty claim was improperly dismissed, and (5) the claims against Robert Vowell were improperly dismissed because Sandra David was acting as his agent at the time of the sale of the vehicle. .
|inA. The Products-Liability Claim..
To establish a cause of action for products liability. Madden must prove that (1) when the LRW defendants sold the vehicle to her, a seatbelt defect was present that rendered- her vehicle unreasonably dangerous, and (2) the defect proximately caused her injuries. Ark, Code' Ann. § 4-86-102; Higgins, supraj A finding of liability on the part of the manufacturer is not necessary for a supplier to be held liable for a defective product. The facts and analysis on this issue as presented by the LRW defendants are essentially the same as those presented by Mercedes and TRW in their motion for summary judgment on the products liability claims against them.
The LRW defendants adopted the arguments and evidence presented by Mercedes and TRW in their motion for summary judgment and used that motion and its attached exhibits to establish prima facie entitlement to summary judgment. That Evidence includes the testimony of Madden’s expert, Gerald Barnett, wherein he, as we have noted already, stated that he would have to be “a psychic” to know when the alleged defect had occurred and that he would have to examine the seatbelt to do' more than speculate as to the cause of the belt unlatching. Madden failed to offer any evidence that demonstrates the existence of a material fact that would allow a jury to move beyond speculation regarding the cause of the alleged defect. We affirm the court’s order granting summary judgment on the products-liability claim against the LRW defendants.
B. The Breach-of-Warranty Claims
A preliminary issue raised by Madden is whether the LRW defendants waived any defense they had related to the disclaimer of warranties.. She argues that the disclaimer of ^warranties is an affirmative defense, and pursuant to Arkansas Rule of Civil Procedure 8(c), the LRW defendants were required to assert the defense in their answer. . We disagree. Arkansas Code Annotated section 4-2-316 governs the disclaimer of warranties. Nothing in that statutory section indicates that the disclaimer of warranties is an affirmative defense, and Madden offers no authority.-for her argument that the exclusion or modification of warranties is an affirmative defense that is waived if not timely raised in a responsive pleading. In any event, the LRW defendants also reserved and pled all affirmative defenses available under Ark. R. Civ. P. 8(c) in their answer as a belt-and-suspenders approach,
Turning to the merits, we note that the exclusion or modification of warranties is governed by Arkansas Code Annotated section 4-2-316. The statutory sections pertinent to our review aré as follows:
(8) Notwithstanding subsection (2):
(a) unless- the circumstances indicate otherwise, all implied warranties- aré excluded by expressions like “as is”, “with all faults” ■ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and >•'
(b) when the buyer before entering into the contract has examined' the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
Ark. Code Ann. § 4-2-816(3) (Repl. 2001).
The bill of sale executed when Madden and her husband bought the vehicle from the LRW defendants provided that the seller warranted only good and marketable title to [12the vehicle, and the property was “otherwise sold in ‘as is’ condition.” Arkansas Code Annotated section 4-2-316(3)(a) provides that “all implied warranties are excluded by expressions like ‘as is.’ ” Moreover, Madden and her husband acknowledged that they knew the vehicle was sold “as is.”
Although the inclusion of the “as is” clause in the bill of sale seems to settle the issue of whether the LRW defendants made any warrdnties to Madden, she argues otherwise. She contends that Ark. Code Ann. § 4-2-316(3)(b)'imposes an additional requirement necessary to disclaim all implied warranties. ■ • That section provides that “when the buyer before entering into the contract .has examined the goods or sample or model as fully as. she desires or has refused to examine the goods there is no implied warranty with regard to defects which an examination .ought in the circumstances to have revealed to him.” Ark. Code Ann. § 4-2-316(3)(b). , Madden argues that the conjunction “and” in Ark. Code Ann. § 4-2-316(3)(a) .& (b) requires that the LRW defendants prove both the existence of an “as is” clause and that the buyer examined the goods or refused to examine the goods in order to be entitled to the defense of disclaimer of warranties.
Wé disagree and hold that Arkansas Code Annotated section 4-2-316(b) is only applicable when the defendants assert the exclusion or modification of an implied warranty due to the buyer’s opportunity to examine the goods or a sample or model. See AMI Civ. 2614 note. Our reading of the provision itself as well as the notes on use of the jury instruction indicates that the conjunction “and” was used to demonstrate ■ that there are multiple ways in which a disclaimer may be made. We hold that the “as is” clause in the bill of sale was sufficient to disclaim all implied warranties.
11sMadden also, argues that her breach-of-warranty claim against the LRW defendants should have survived because the defective ■ seatbelt amounted to a latent defect that could not be disclaimed. But, as she herself concedes, this contention depends on the same evidence she relied upon in sustaining her claim for products liability. As discussed more fully above. Madden failed to establish a triable dispute on the point that a seatbelt defect was present when she bought the vehicle.
Next, Madden argues that the circuit court mistakenly dismissed her express warranty claim. The bill of sale contains no express warranty other than the conveyance of good and marketable title. The only potential evidence that there was any other express warranty comes from Madden’s testimony that Sandra David told her that the car was a good vehicle that drove well. The statements purportedly made by Sandra David are insufficient to create an express warranty because it is error to introduce oral testimony to vary the terms of a sales agreement. See Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142 (1966). Additionally, a necessary element for a breach-of-express-warranty claim is that the party asserting the breach relied on the warranty term in making the décision to buy the vehicle. Madden made no allegation that she relied on Sandra David’s statements, and a failure to plead reliance on the warranty torpedoes an express-warranty claim. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). The circuit court’s dismissal of the express-warranty claim islikewise affirmed.
Because we affirm the dismissal of all Madden’s claims against the LRW defendants, we need not consider her final argument regarding whether Sandra David acted as Robert Vowell’s agent when she sold the vehicle to Madden.
| ^Affirmed.
Vaught and Hixson, JJ., agree.
. Taylor was served, and he defaulted on the complaint. On 15 October 2014, a default judgment was entered against him, and he is not a party in this appeal.
. Mercedes-Benz U.S. International, Inc." and Mercedes-Benz USA, LLC (collectively referred to as Mercedes) manufactured, distributed, and/or sold Madden’s vehicle.
. TRW Safety Vehicle Safety Systems, Inc. . (TRW) supplied the seatbelt for Madden’s vehicle.
. Little Rock Wholesale, Robert Vowell, and Sandra David (collectively referred to as the LRW defendants) were sued because of their role in selling the vehicle to Madden and her husband. | [
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LARRY D. VAUGHT, Judge
11 Valerie Robinson appeals the Miller County Circuit Court’s, termination of her parental rights to her two sons, M.R., born January 5, 2009, and B.R., born April 15, 2002; We affirm.
Robinson’s two sons were removed frotó her custody’on June 19, 2013, because Robinson tested positive for methamphetamine, there was no food or electricity in the house, the home was in disarray, and Robinson had a sex offender living in the home with the boys. The -Arkansas Department of Human Services (“DHS”) filed a petition for emergency custody , and to have the boys adjudicated dependent-neglected. After a probable-cause hearing on June 26, 2013, the court issued a probable-cause order for the boys to remain in DHS care. On July 17, 2013, the court found the boys to be dependent-neglected. At the hearing, Robinson admitted to having, used methamphetamine, keeping a home in disarray with no food or electricity, and having a live-in boyfriend, Jason Dolan, who was a 12sex offender. Robinson was ordered to comply with a case plan that included submitting to a psychological evaluation, completing counseling if recommended, submitting to a drug-and-alcohol assessment, successfully completing substance-abuse treatment if recommended, submitting to and passing random drug screens, obtaining safe and stable housing and employment, and maintaining that housing and employment for at least six months.
At a review hearing on October 9, 2013, the court found that Robinson had not complied with the case plan because she had not submitted to a psychological evaluation, completed, counseling, submitted to a drug and alcohol assessment, completed substance abuse treatment, completed parenting classes, or submitted to random drug screens. Another review hearing was held on April 9, 2014, at which time the court found that Robinson had complied with the cáse plan, although she still had not secured stable housing or employment.
The permanency-planning hearing was held on June 4, 2014, and the court found that Robinson was in full compliance and had obtained housing and employment. At this hearing, .the court authorized a thirty-day trial placement of the boys with Robinson because she was making progress in working her case plan. The boys were placed in her custody on July 16, 2014, at the fifteen-month review hearing. However, at a routine home visit during the trial placement, Robinson’s hew boyfriend, Ronnell McDonald, was found hiding in a closet partially clothed. Due to this discovery, DHS filed a motion for emergency change of custody because Robinson had violated the court order authorizing the trial placement, |awhich prohibited the children from having any contact with McDonald and prohibited Robinson from having nonrelative overnight guests in the home. After a hearing, the boys were returned to foster care and were again found to be dependent-neglected.
At the next review hearing on February 18,2015, the court found Robinson to be in violation of the case plan because she had been terminated from her job and evicted from her home. On March 18, another permanency-planning hearing was held, and the court found- that Robinson had complied with the case plan and court orders. At tins time, she had begun receiving SSI disability benefits. ■ -
DHS filed a petition to terminate parental rights on April 9, 2015; alleging three statutory grounds for termination pursuant to Arkansas Code Annotated section 9—27—341(b)(3)(B)(i), (vi), (vii) (Supp.2015): (1) the juveniles had beefi adjudicated dependent-neglected and had continued to be out of Robinson’s custody for twelve months and, despite DHS’s meaningful efforts to rehabilitate Robinson and correct the conditions that caused removal, those conditions had not been remedied by Robinson; (2) the court had found the juvenile or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the-child, sexual-abuse, or sexual exploitation, perpetrated by Robinson or the children’s other parent or stepparent; and (3) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that [¿placement of the juveniles in Robinson’s care was contrary to their health, safety, or welfare, and that despite the offer of appropriate family services, Robinson, manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevented the placement., of the juveniles in her custody.
After conducting a termination hearing, the trial court found the existence of statutory grounds (1) and (3) above: failure, to remedy and other subsequent factors. The court further found that termination was in the boys’ best interest and terminated Robinson’s- parental rights. Robinson filed a timely notice of appeal.
A trial court’s termination of parental rights must be based on factual findings proven by clear and convincing evidence. Ullom v. Ark Dep’t of Human Servs., 67 Ark.App. 77, 992 S.W.2d 813 (1999). We will not reverse a trial court’s ruling as to termination unless it is clearly erroneous. Brewer v. Ark. Dep’t of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). Under Arkansas law, in order to terminate parental rights, a trial court must find both that termination would be in the child’s best interest and that at least one statutory ground for termination 'has been established. Meriweather v. Ark. Dep’t of Human Servs., 98 Ark.App. 328, 332, 255 S.W.3d 505, 507 (2007).
Robinson’s first-point on appeal is that the trial court clearly erred in finding that she had failed to remedy the conditions that originally caused the children to bé removed-. She bargues that she had successfully worked her case plan and that none of the causes of removal were' still present at the time of termination. The trial court found that, despite Robinson’s significant efforts, she had not remedied the original factors causing removal because she had not maintained sobriety, maintained safe or appropriate housing, or demonstrated the capacity to protect or provide for the children. The court noted that she had completed many of the services DHS provided, but that she “still cannot safely care for her children.” The court noted that she had exhibited only minimal to moderate improvement through DHS’s mental health and counseling services. Robinson argues that she had remedied the specific conditions (drug use, lack of food and electricity, cohabitation with a sex offender) that caused the boys’ removal and that the court could not consider her general capacity to care for the children in analyzing this statutory ground. We disagree.
Robinson’s argument ignores the fact that, from the outset of tins case, her severe mental and psychological impairments prevented her from caring for her children. In its termination order, the trial court noted that DHS had first been involved with Robinson’s family through a protective-services case that preceded and led to the initiation of tins dependency-neglect case. Prior to removing the children, DHS had provided Robinson with parenting classes, medication management services, counseling, and even an inpatient mental-health hospitalization. The trial court’s termination order repeatedly notes that, despite her best efforts at rehabilitation, Robinson still cannot care for ■ her children. This finding is related to the original reasons for removal, which highlighted specific manifestations of Robinson’s inability to parent the boys. We hold that there was sufficient [ ^evidence to support the trial court’s findings, and the court’s inclusion of her underlying incapacity to care for her children was not clearly erroneous.
Robinson’s second argument on appeal challenges the trial- court’s finding that there were other factors or issues that arose subsequent to the filing of the original petition that'demonstrate that placément of the boys in Robinson’s care is contrary to their health, safety, or-welfare, and that despite, the offer of appropriate family services, Robinson manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent the placement of the boys in. her custody. The termination order stated that Robinson continued to get involved with inappropriate men during the case, had lost her only support system when her. mother died, and had recently obtained an SSI disability finding based on mental-health issues that DHS had tried to address but had not been able to remedy. . It is undisputed that a trial placement with Robinson ended when she violated court orders by having her boyfriend as-an overnight guest, despite the fact that he refused to participate in the case plan and had previously had his parental rights terminated as to five children in California. Additionally, Robinson admitted that she was afraid to care for the children on her own, a problem made worse by the death of her mother, who had been her only support system. Finally, the trial court noted Robinson’s recent SSI disability finding, stating that DHS had attempted to address the serious mental-health issues with every service available, but had not succeeded. As discussed above, we affirm the trial court’s determination that Robinson’s incapacity to care for her children was an underlying cause of- their removal, but that finding does not prevent the trial court from, also recognizing that the extent and severity of her mental-health problems only became apparent late in this, case, ^constituting a subsequent factor under- the statute. We hold that there was sufficient evidence to support this statutory ground and that the court’s finding was not clearly erroneous.
Robinson also argues that termination of her parental rights was not in the boys’ best interest. She challenges the trial court’s finding as to both adoptability and risk of potential harm if returned to her. As to adoptability, there was conflicting testimony, mo'st of it indicating that the boys have severe behavioral and emotional problems and are not yet adoptable, but could become adoptable. The court found that the boys’ best chance for permanency was to terminate- Robinson’s rights and allow them to heal from the emotional problems she had caused. We agree. Robinson’s argument is, essentially, that her neglect, drug use, and inability to parent had caused her children to have such severe emotional and behavioral problems that they are not -currently adoptable, so she should get them back.. Such a ruling would be in clear derogation of our well-established case law regarding termination. “Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children.” McElroy v. Ark. Dep’t of Human Servs., 2014 Ark. App. 117, at 6, 432 S.W.3d 109, 113-14. Robinson seeks to benefit from the fact that she so traumatized her children that they may need additional services in order to be adopted. We reject this argument and affirm the trial. court’s finding that termination was in the boys’ best interest even if adoption was not immediately available to them. We also affirm the court’s finding that the boys faced a risk of potential harm if returned to Robinson’s care. Given the fact that a trial placement |swith Robinson failed, Robinson demonstrated an inability to care for the children, and she was unable to maintain stable housing, there was sufficient evidence -to support the court’s finding that returning the boys to Robinson’s custody would pose a potential risk of harm. We hold that the trial court’s determination that termination of Robinson’s parental rights was in the best interest of her two sons was not clearly erroneous.
Affirmed.
Harrison arid Hixson, JJ., agree.
. While there are no direct allegations of sexual abuse in tins case, the evidence reveals that B.R. told a caseworker that an unidentified man had molested him, that he had told his mother and grandmother, and that they had not believed him.
. McDonald had previously had his parental rights involuntarily terminated as to several .children in California.
. The record reflects that -Robinson was found to have the following "severe impairments: bipolar I disorder, anxiety disorder, borderline intellectual functioning, borderline personality disorder, dextroscoliosis and. migraine headaches.” These impairments were found to result in "moderate to extreme difficulties in maintaining social functioning," among other impairments.
. The testimony revealed that the boys had severe behavioral and emotional problems. There was conflicting testimony as to whether they were adoptable. In its best-interest anal: ysis, the trial court did not specifically find the boys to be currently adoptable; it considered adoptability and found that their best hope for permanency was termination of Robinson's parental rights so that they may recover and become adoptable.
.The court also terminated the rights of the boys’ putative fathers, who are not' a part of this appeal. | [
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PHILLIP T. WHITEAEER, Judge
| iAppellant Brenda McAteer challenges the decision of the Arkansas Board of Review (“Board”), contending that substantial eviden.ce does not.support its finding that she was disqualified from .unemployment benefits because she..was terminated from her last employment for misconduct. We disagree and affirm.
Our standard of review in unemployment-insurance cases is well settled. We do not conduct de novo reviews in appeals from the Board of Review. West v. Dir., 94 Ark.App. 381, 231 S.W.3d 96 (2006). Instead, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings of fact. Rockin J Ranch v. Dir., 2015 Ark. App. 465, 469 S.W.3d 368. The Board of Review’s findings of fact are conclusive if supported by substantial evidénce, which is such relevant evidence that a reásonable mind might accept ás adequate to support a conclusion. Id. Even when there is evidence upon | ¿which the Board might have reached a different decision, the scope of judicial review is limited to a determina*tion of whether the Board could have reasonably reached the decision rendered based on- the evidence presented. Id. Credibility calls are for the finder of fact, as is the weight to be accorded to testimony. Id.
With these standards in mind, we turn to the facts of this case. McAteer was employed by Amerities South LLC as an administrative assistant for approximately ten and a half months. Her duties included payroll, shipping, accounts receivable, and accounts payable. McAteer demonstrated a “pattern of errors” throughout her employment, which included making frequent and numerous mistakes on the payroll, bills of lading, and employee files; in addition, she had consistent difficulty conveying driving directions to the plant, even after working there for six months.
M'cAteer’s “pattern of errors” was addressed on a number of occasions by her supervisors at Amerities, who warned McAteer repeatedly about her poor work performance in September and October 2014. In an October meeting, management made it clear to McAteer that she would need to make “significant and immediate progress” toward reducing her errors, or “further action would have- to be taken, up to and including discharge.” A follow-up meeting occurred in-November 2014 to review her performance. While her supervisors noted some small improvements, they advised McAteer that she was still making numerous mistakes and needed to demonstrate a significant reduction in her error rate with respect to shipping, payroll, and purchase-order paperwork. They once more made it clear |sto McAteer that she needed to make significant improvements in her performance, or “disciplinary action up to and including discharge would .result.”
Despite her employer’s attempts to address her “pattern of errors,” McAteer failed to demonstrate any improvements. She continued to give incorrect directions to drivers; she made numerous mistakes on bills of lading; she failed to send bill-of-lading copies to people who were to be billed; she was not electronically filing forms for employees as instructed; her reports were incorrect and hád to be revised; and she failed to perform invoice filing for months. By January 2015, McA-teer’s actions produced incorrect results in three out of five payrolls. McAteer was terminated from her employment on January 30, 2015.
After termination, McAteer applied for unemployment benefits, The Department of Workforce Services (“Department”) issued a notice of agency determination finding that McAteer was disqualified from benefits because she had been terminated for misconduct. McAteer appealed to the Arkansas Appeal Tribunal (“Tribunal”). The Tribunal issued ah opinion reversing the Department and finding that McAteer was qualified for benefits. Amerities appealed the Tribunal’s decision to the Board, which reversed the Tribunal. In doing so,, the Board noted that McAteer had not improved her performance, and the errors she was making in January 2015 were the same kinds'of errors that she had been making in October 2014, when her employers first called her poor performance to her attention. The Board found as follows:
The preponderance of the evidence does not indicate that the claimant’s errors were the result of her inability to perform her job but rather were within her control. As the claimant’s errors constituted repeated acts- of commission, omission, or negligence, and as the claimant continued to make those errors despite progressive discipline | ¿having been issued, the claimant’s poor performance must be viewed as “intentional” under Ark.Code Ann. § ll-10~514(a)(4)(B).
McAteer timely appealed the Board’s decision.
A claimant is disqualified from receiving unemployment benefits if she is discharged from her last work for misconduct in connection' with the work. Ark. Code Ann. § ll-10-514(a) (Repl. 2012). Misconduct includes the violation of any behavioral policies of the employer, disregard of the employer’s rules, disregard of the standards of behavior that the employer has a right to expect from its employees, and disregard of the employee’s duties and obligations to her employer. Rockin J Ranch, supra; Cook v. Dir., 2009 Ark. App. 454, 2009 WL 1553636; Nibco v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). Our case law has long interpreted misconduct in this context not to be ordinary negligence, good-faith errors in judgment or discretion, or mere unsatisfactory conduct, unless they are of such a degree or recur so often as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Maxfield v. Dir., 84 Ark.App. 48, 129 S.W.3d 298 (2003). It is the employer’s burden to establish misconduct by a preponderance of the evidence. Jones v. Dir, 2014 Ark. App. 426, 439 S.W.3d 85. Whether an employee’s behavior is misconduct that justifies the denial of unemployment benefits is a question of fact for the Board to decide. Id. There is an element of intent associated with a détermination of misconduct. Clark v. Dir, 83 Ark.App. 308, 126 S.W.3d 728 (2003).
On appeal, McAteer argues that the facts of this case do not support- an element of intent associated with a determination of misconduct. Shé takes the position that her case is governed by Greenberg v. Director, 53 Ark,App. 295, 922 S.W.2d 5 (1996). In that case, | ^Esther Greenberg was fired from her job as a legal secretary for poor job performance, including failing to spell-check documents, failing to mark dates on her employer’s calendar, and failing to include important, documents with a letter sent to ah opposing party. Although the Department and the Tribunal found that Greenberg was entitled to unemployment benefits, the Board reversed, determining that she had been terminated for misconduct. Greenberg, 53 Ark.App. at 297, 922 S.W.2d at 7. This court reversed, however, finding that the enumerated instances of misconduct were not adequate to.support the conclusion that Greenberg’s conduct was of such a degree or recurrence as to manifest culpability, wrongful intent, evil .design, or an intentional or substantial- disregard: of her employer’s interests-or-her duties and .obligations. Id. at 298, 922 S.W.2d at 7.
McAteer argues that her performance problems were akin to those that were found not to ' constitute misconduct in Greenberg: She insists that both she and Greenberg were “simply unable to attain the standards mandated by the employer,” and as such, her actions did not rise to-the level of misconduct. We disagree. The facts as recited in Greenberg indicate that the - employee was fired simply for being incompetent as a legal secretary and making isolated errors. They do not indicate—as here—that she had been told repeatedly that her performance was consistently deficient and that if she did not show marked improvement, she would face disciplinary action, up to and including termination.
Moreover, since Greenberg was decided, the General Assembly has amended Arkansas Code Annotated section 11-10-514(a) to include the following language: “An individual’s repeated act of commission, omission, or negligence despite progressive discipline constitutes ^sufficient proof of intentional poor performance.” Ark.Code Aim. § ll-10-514(a)(4)(B) (Repl.2012). Our case law has additionally made it clear that .an employee’s good-faith "errors in judgment or discretion and unsatisfactory conduct.are not. misconduct unless they are of such a degree or recurrence as to- manifest • culpability, wrongful intent, evil design, or intentional'disregard of an employer’s interest. Williams v. Dir., 2013 Ark. App. 581, at 5, 2013 WL 5424947 (emphasis added). Thus, the recurrence of unsatisfactory conduct can reach such a degree to manifest the necessary intent to establish misconduct for. unemployment-insurance purposes. Id. • • -
Here, McAteer was confronted by her supervisors about her poor performance on numerous occasions, which she acknowledged before the Tribunal. Despite these repeated warnings, McAteer failed to improve her job skills or .her performance, repeating the same errors for several months after her supervisors began speaking with her about her deficiencies. The evidence of her persistent inability to improve her job performance, despite being warned on several occasions that failure to improve could lead to her termination, supports the Board’s conclusion that McAteer’s “repeated errors, which were made after multiple warnings were issued regarding such errors, constituted ‘repeated acts of commission, omission or negligence.’ ” We therefore affirm.
Affirmed.
Gruber and Hoofman, JJ., agree. | [
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PER CURIAM
hOn December 11, 2012, judgment was entered in the Pulaski County Circuit Court in case number 60CR-12-1134 reflecting that appellant David W. Engstrom had entered a plea of guilty to the offense of failure to register as a sex offender and that he had been placed on probation for a period of seventyrtwo months. In January 2015, probation was revoked, and Eng-strom was sentenced to serve a term of thirty-six months’ imprisonment. On January 23, 2015,- judgment was entered in case number 60CR-13-3242, reflecting that Engstrom had pleaded guilty to multiple-counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving-a child and that an aggregate sentence of 720 months’ imprisonment had been imposed.
On April 21, 2015, Engstrom filed a pro se petition for postconviction relief pursuant to-Arkansas Rule-of Criminal Procedure 37.1 .(2015) seeking to have the judgments in both cases declared void. While Engstrom placed both docket numbers on the petition, the allegations contained in it pertained only to case number 60CR-13-3242. The trial court ^entered one order that covered both cases in which it addressed the issues raised in the petition and declared that those issues were without merit and also held that the petition filed April 21, 2015, was subject to dismissal on the ground that the Rule 37.1 petition was not timely filed. Engstrom 'lodged an appeal in this court from the order. Now before us are Engstrom’s motions for extension of, time to file his brief.
We dismiss the appeal because it is evident fi*om the‘record that appellant could not succeed on appeal. This court will not permit an appeal from an order that denied a petition for postconviction relief to go forward where it is clear that the appellant could not prevail. Justus v. State, 2012 Ark. 91, 2012 WL 664259. The motions are rendered moot by the dismissal of the appeal.
With respect to case number 60CR-12-1134, the Rule 37.1 petition was indeed untimely filed. Rule 37.2(c) requires that, when an appellant entered a plea of guilty, a petition under the Rule must be filed in the trial court within ninety days of the date- of entry of judgment. Ark. R.Crim. P. 37.2(c)(i). As stated, Engstrom filed his Rule 37.1 petition that referenced the 2012 judgment in 2015, which was outside the ninety-day period to seek relief under the Rule in that case. Accordingly, the trial, court was correct that it could not consider the. petition as it concerned 60CR-12-1134.
In 60CR-13-3242, the Rule 37.1 petition was timely filed, but the petition did not state a ground on which relief under the Rule could be properly granted. When a plea of guilty is entered, the sole issue in postconviction proceedings is whether the plea was intelligently and voluntarily entered on advice from competent counsel. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259.
| jjEngstrom contended specifically that his attorney was ineffective because counsel’s tactics intimidated him into pleading guilty despite the fact that he only possessed pictures and videos and never made actual physical contact with a victim. He further contended that counsel would not accept his phone calls or visit him before he entered the plea and did not inform him until the day the plea was entered that the sentences for' his multiple offenses would be ordered to be served consecutively. He also claimed that his attorney did not inform him that he could appeal from the guilty-plea judgment and that evidence was insufficient to justify his. attorney’s advice that he enter a plea of guilty that had the effect, considering his age, of causing him to spend the rest of his life incarcerated. .■
On appeal from the denial of Rule 37.1 relief, we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that counsel’s performance was deficient. Id. This requires a showing that counsel made errors so serious that the petitioner was deprived of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial, the outcome of which cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. This court will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). |4A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. A court must indulge in a strong presumption that counsel’s conduct falls •within the wide range of reasonable professional assistance. Id.
The general 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 applied to challenges to guilty pleas based on inéffec-tive assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366; Mancia, 2015 Ark. 115, 459 S.W.3d 259. The onus is' on the petitioner, to overcome the prer sumption that counsel was effective by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Anderson v. State, 2011 Ark. 488, at 5, 385 S.W.3d 783, 788. Conclusory statements cannot be the basis for postconviction relief. Id.
Under the Strickland standard, Eng-strom did not demonstrate in his petition that his plea was not intelligently and voluntarily entered on advice of competent counsel. First, he did not explain what tactics were employed by counsel to compel him to enter a plea of guilty. RThe conclusory statement did not affirmatively support his claim of prejudice and was not sufficient to overcome the presumption that counsel was effective. See Watson v. State, 2014 Ark. 203, at 5, 444 S.W.3d 835, 840.
With regard to Engstrom’s allegation concerning whether his conduct was serious enough to warrant such: a lengthy sentence because he did not make physical contact with a victim, the issue was one which could, and- should, have been addressed before he entered his plea of guilty; Assertions that are essentially a challenge to the sufficiency of the evidence to support the judgment are not cognizable in a Rule 37.1 proceeding. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. By pleading guilty, Engstrom waived any claim that he was not guilty of the charges. Beverage v. State, Ark. 112, at 7, 458 S.W.3d 243, 248.
As for Engstrom’s allegation that his attorney did. not accept his phone calls and visit him, to .establish prejudice and demonstrate ineffective assistance of counsel for failure of counsel to communicate with the defendant, a petitioner who entered a plea of guilty must demonstrate a reasonable probability that, but for counsel’s errors, he would not have so pled and would have insisted on going to trial. See Scott v. State, 2012 Ark. 159, 2012 WL 1223751 (per curiam). A petitioner under Rule 37.1 must allege some direct correlation between counsel’s deficient behavior and the decision to' enter the plea. Scott, 2012 Ark. 199, 406 S.W.3d 1. Engstrom did not explain how further contact with counsel would have strengthened his defense or otherwise prevented him from entering a guilty plea. A petitioner under the Rule arguing that his defense was affected by a lack of contact with counsel must set out the specific prejudice he suffered inasmuch as a petitioner'who ■ has entered a guilty plea normally will |fihave considerable difficulty in proving any‘prejudice, as the plea rests on an admission in open court that the appellant did the act charged. See id.
Turning to the-length of the aggregate sentence imposed, Engstrom conceded in his petition that.he was prepared to plead guilty and be sentenced to a term of imprisonment for each charge. That is, his primary focus in. the petition was not on the entry, of the guilty plea, but rather on the fact that he was ordered to serve consecutive sentences. Engstrom did not state a basis for -Rule 37.1 relief because he could have declined to enter-the plea when he learned of the court’s intention to order consecutive sentencing and -proceeded to trial. A criminal defendant does not have an absolute right to plead guilty on his or her own terms. See Numan v. State, 291 Ark. 22, 23, 722 S.W.2d 276, 277 (1987). That is, Engstrom could have opted to be tried for the offenses, and he failed to state any reason that he could not have refused to enter his plea when he determined' the length of the aggregate sentence that would be imposed.
Finally, with respect to -Eng-strom’s claim that his attorney failed to advise him of his right to appeal, Arkansas Rule of Appellate Procedure—Criminal 1(a) (2015) provides that there is no direct appeal from a plea of guilty. An exception is created when a conditional plea of guilty is premised on an appeal of the denial of a suppression motion pursuant to Arkansas .Rule of Criminal, Procedure 24.3 .(2015). See Seibs v. State, 357 Ark. 331, 166 S.W.3d 16 (2004). Two additional exceptions to. the general rule, as set out in Seibs and Johnson v. State, 2010 Ark. 63, 2010 WL 1006439, are (1) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself and (2) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). Absent one of the exceptions, a defendant waives his right to appeal when he pleads guilty. Nelson v. State, 2012 Ark. 217, 2012 WL 1739112 (per curiam); Smith v. State, 2011 Ark. 54, 2011 WL 539128 (per curiam); Grissom v. State, 2009 Ark. 328, 2009 WL 1497508 (per curiam); see also Berry v. City of Fayetteville, 354 Ark. 470, 125 S.W.3d 171 (2003); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). We have held, however, that an appeal may be taken after a guilty plea when the petitioner alleges evidentiary errors which arose after the plea and during the sentencing phase, regardless .of whether a jury was impaneled for that phase, of trial. See Tubbs v. State, 2011 Ark. 166, 2011 WL 1424572 (per curiam); see also Johnson, 2010 Ark. 63, 2010 WL 1006439.
Engstrom did not contend that his plea was conditional or that it otherwise-met any of the exceptions that would allow for an appeal from the judgment. Accordingly, he did not establish that counsel had a ■duty to inform him of a'right to appeal from the judgment entered on his-plea of guilty. See Nelson, 2012 Ark. 217, 2012 WL 1739112; see also Smith, 2011 Ark. 54, 2011 WL 539128.
Appeal dismissed; motions moot. | [
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ROBERT J. GLADWIN, Chief Judge
| íAppellant Priscilla Ponder appeals the January 26, 20Í5 orders of the Union County Circuit Court, arguing that there was insufficient evidence to support the circuit court’s grant of permanent custody of appellant’s three minor children, A.P., E.P., and J.P. to relatives and closing the case. We agree; accordingly, we reverse and remand.
I. Fads and Procedural History
On December 13, 2013, the Department of Human Services (DHS) took a seventy-two-hour hold on appellant’s children after the death of a sibling. The children were |2separated almost immediately; A.P. was placed with one set of relatives, and E.P. and J.P. were placed with another. The children were adjudicated dependent-neglected by an order file-marked on May 29, 2014, and the goal was set for reunification. ■ Review hearings held on June 16, August 4, and September 29, 2014, continued that goal until the permanency-planning hearing on December 1, 2014, when the goal was changed to obtaining a permanent custodian, including permanent custody with a fit and willing relative.
' The circuit court found that it was not in the children’s best interest to return custody to appellant and cited several reasons for that finding. Visitation was continued as previously ordered, prior orders not in conflict remained in effect, and the case was set for a review hearing. At the review hearing on January 9, 2015, the circuit court granted permanent custody of appellant’s three children to two separate sets of relatives and closed the DUS case. On January 29, 2015, appellant filed a notice of appeal regarding the orders granting permanent custody of her children that are file-marked January 26, 2015, and' this appeal follows.
The January 9, 2015 hearing—from which the orders now appealed were handed down—included no testimony, evidence, coherent arguments of counsel, or findings from the circuit court. ■. But the orders appealed from specifically state,
From the testimony, exhibits, statements of the parties and counsel, the record herein, and other things and matters presented, '■ the- Court, noting the best interests, welfare, health and safety, case plant,] and appropriate statutory placement alternatives.
I sIn appellant’s brief, the only proceeding abstracted was the January 9,' 2015 review hearing from' which the orders are appealed originated pursuant to Rule 6-9 of the Arkansas ¿Supreme Court Rules (2015), which states in pertinent part,
(c)(1) The record for appeal shall be limited to the transcript of the hearing from which the order on appeal arose, any petitions, pleadings, and orders relevant to the hearing from which the order on appeal arose, all exhibits entered into evidence at that hearing, and all orders entered in the case prior to the order on appeal. (Emphasis added.)
Although described as a review hearing, the ten-page abstract and corresponding pages in the record indicate that other than counsel for the parties discussing the purpose of the hearing, the only matter dealt with was appellant’s trial counsel basically conducting an indigency inquiry for the purpose of appeal of the December 1, 2014 permanency-planning hearing. On June 17, 2015, this court granted appellant’s motion to strike the exhibits and transcript from the December 1, 2014 permanency-planning hearing, which were not reintroduced at the January 9, 2015 review hearing and should not have been included in the appellate record filed before this court.
II. “ Standard of Review
A dependent-neglected child’s custody, when the preponderance of the evidence shows that it is in their best interest, can be transferred to a relative. Ark.Code Ann. §§ 9-27-325(h)(2)(B), 9-27-334(a)(2)(A), 9-27-335(d) (Repl. 2009 & Supp. 2013). The appellate court on appeal will not reverse the circuit court’s best-interest finding unless, it is .clearly erroneous.. See Penn v. Ark. Dep’t of Human Servs., 2013 Ark. App. 327, 2013 WL 2112229.
| /This court reviews findings in dependency-neglect proceedings de novo but will not reverse the circuit court’s findings unless they are clearly erroneous. Porter v. Ark. Dep’t of Human Servs., 374 Ark. 177, 286 S,W.3d 686 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Seago v. Ark. Dep’t of Human Servs., 2011 Ark. 184, 380 S.W.3d 894. While disputed facts and determinations of credibility are within the province of the fact-finder, Miller v. Ark. Dep’t of Human Servs., 86 Ark. App. 172, 167 S.W.3d 153 (2004), a circuit court’s conclusion on a matter of law is given no deference ,on appeal. Linder v. Ark. Midstream Gas Seros. Corp., 2010 Ark. 117, 362 S.W.3d 889.
III. Statutory Requirements for Review Hearings
Under Arkansas Code Annotated section 9-27-337 (Supp. 2013), the court shall re view'every case of dependency-neglect 'when:
(a)(1)(A) A juvenile is placed by the court in the custody of [DHS] or in anothei* out-of-home placement until 'there is a permanent order of custody
(e)(1)(A) In each case in which a juvenile has been placed in an out-of-home placement, the court shall conduct a hearing to review the case sufficient to determine the future, status of the juvenile based ,upon the best interest of the juvenile.
(B)(i) The court shall determine and ■ shall include in its orders the following:
(a) Whether the case plan, services, and placement meet the special needs and best interest of the juvenile, with the juvenile’s health, safety, and educational needs specifically addressed;
(b) Whether the state has made reasonable efforts to provide family services;
| fi(c) Whether the case plan is moving towards an appropriate permanency plan pursuant to § 9-27-338 for the juvenile; and
(d) Whether the visitation plan is appropriate for the juvenile, the' parent or parents, and any siblings, if separated.
(C) In making its findings, the court shall consider the following:
(iv) An appropriate permanency plan pursuant to § 9-27-338 for the juvenile.
Ark.Code Ann. §§ 9-27-337(a)(l)(A), (e)(1)(A), (B)(i),. (C)(iv).
IV. Sufficiency of the Evidence Sup-poHing Circuit Court’s Grant of Permanent Custody
The orders appealed from specifi-cdlly indicate that the case was thoroughly
reviewed by the court on January 9, 2015, and pronounce that the circuit court found that it was in the-children’s best interest .to grant permanent custody -to their respective custodians, that DHS was relieved of providing services, and that no further review hearings would be required. ‘ But our review of the record confirms that-there were no findings made by the circuit court based on evidence presented at the review hearing regarding, the best interest of the children. Whether a change in custody is in the best interest of a child is a question of fact, not a matter of law, and as such, the best-interest criterion is susceptible of, and must be attended by, some proof. See Calhoun v. Calhoun, 84 Ark. App. 158,138 S.W.3d 689 (2003). This court has cautioned DHS not to be “cavalier” in producing evidence given that DHS has the burden of proof at trial.- Dean v. Ark Dep’t of Human Servs., 2009 Ark. App. 198, at ¶ 3, 299 S.W.3d 537, 539. Factors offered in evidence enable the circuit court to make its statutorily-mandated findings, such as “best interest.” .
|fiWe hold that the' circuit court committed reversible error by making findings that granted custody in the orders appealed from despite the complete lack of evidence presented for the circuit court to consider at the January 9, 2015 review hearing. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded..
Abramson, Glover, Hixson, Hoofman, and Brown, JJ., agree.
. These were final orders pursuant to Arkansas Rule of Civil Procedure .54(b) (2015), entered subsequent to the review hearing; notices of appeal were filed on January 29, 2015.
. This child was her boyfriend’s son, L.C. it is unclear whether L.C. was, in fact, a sibling for purposes of the Juvenile Code. | [
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BART F. VIRDEN, Judge
|,After appellant Steven L. Pascuz-zi pleaded guilty to second-degree sexual assault, a Garland County jury sentenced him to five years’ imprisonment. On appeal, Pascuzzi argues that the trial court erred during the sentencing phase in not declaring a mistrial when the State improperly accused him of “inappropriate sexual contact” with his mother-in-law. We affirm but remand to correct an error in the sentencing order.
|¾1. Testimony at Sentencing Phase
Following Pascuzzi’s guilty plea, a sentencing' hearing was held before a jury. The victim, E.S., testified that she was eleven years old when'Pascuzzi, whom she described as her “uncle-in-law,” forced her to touch his penis while he masturbated. After K.S. reported the assault through the child-abuse hotline, Investigator Jennifer Tonseth with the Garland County Sheriffs Office interviewed Pascuzzi, who admitted that KS.’s allegation was true.
Pascuzzi conceded that he was babysitting K.S. and his four children at the time of the assault, and he testified that since his incarceration his children were being cared for by his mother-in-law. Pascuzzi denied assaulting any other children. The prosecutor then asked, “Would you agree with me that you’ve acted sexually inappropriate with your mother-in-law?” Defense counsel objected to the question on the bases that it was irrelevant and prejudicial and that “we have not heard any testimony about the mother-in-law.” The prosecutor said, <cYour Honor, [PascuzziJ’s saying he’s so sorry,' that he wishes' he could undo it again. I think the fact that if he’s sexually inappropriate with other individuals indicates — .” After some discussion, the prosecutor withdrew the question.
II. Argument
Pascuzzi argues that the trial court should have declared a mistrial following the prosecutor’s improper and highly prejudicial question. Relying on the third exception in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), Pascuzzi argues that the trial court had a duty to intervene and correct the serious error.' He contends that the question violated his fundamental right to a fair trial and tainted the minds of the jurors.
| sill. Discussion
Pascuzzi cites Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993), in which our supreme court reversed and remanded for a new trial after the prosecutor left an impression in the jurors’ minds that complaints existed against the police-officer defendant for threatening to plant drugs on women if they refused him sex. The court noted that the prosecutor’s questions and comments tainted the jury’s decision and violated the fundamentals of the criminal-justice system.
Dillon, however, is readily distinguishable in that defense counsel moved for a mistrial and sought an admonishment to the jury and, therefore, there .was no argument concerning the Wicks exceptions. Here, Pascuzzi did not request a mistrial or an admonition to the jury. Further, once the prosecutor withdrew, the question, Pascuzzi received all the relief he had requested. See Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).
It is a well-settled general rule that we will not consider issues raised for the first time on appeal; a contemporaneous objection is required to preserve an issue for appeal. Davis v. State, 2011 Ark. App. 561, 2011 WL 4477941. ‘ Our supreme court in Wicks set forth four narrow exceptions to the contemporaneous-objection rule. The only exception at issue here is the third one: when the trial court has a duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.
The type of serious error contemplated by this exception deals with errors affecting the very structure of the criminal trial. See, e.g., Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003) (holding that.court would consider, without contemporaneous objection, issues | involving infringement on right of presumption of innocence and State’s burden of proof); Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995) (reversing conviction where defendant was tried before a jury of only six members rather than twelve); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) (reversing convictions where there was no express waiver by defendant of right to jury trial).
While we agree with Pascuzzi that the prosecutor’s question was irrelevant and inappropriate, we hold that the error did not rise to a level sufficient to trigger the third Wicks exception. See, e.g., Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55 (holding that prosecutor’s question about defendant’s prior statement regarding whether he had had sex with his daughter while she was a minor did not fall within exception); McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005) (holding that prosecutor’s cross-examination of defendant about his mother’s alleged statement that he had been accused of a crime in Jamaica was not the sort of error that fell within third Wicks exception); Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (holding that defendant could not raise for first time on appeal that he was fundamentally prejudiced by prosecutor’s statement that defendant had been a drug dealer for ten years); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988) (refusing to consider error involving admission of defendant’s prior bad acts of stashing a stolen motorcycle, killing a man, and skinny dipping with a married woman where no objection was made to the trial court).
Affirmed; remanded to correct error in sentencing order.
Hixson and Brown, JJ., agree.
. Ordinarily, there can be no appeal from a guilty plea. Ark. R. App. P. — Crim. 1(a), In Johnson v. State, 2010 Ark. 63, 2010 WL 1006439, our supreme court held that an appeal may be taken after a guilty plea when it alleges evidentiary errors that arose after the plea and during sentencing.
. The sentencing order is inconsistent in that it states that Pascuzzi “voluntarily, intelligently and knowingly entered a plea directly to the court of guilty;” yet it also indicates that he "was found guilty by the court & sentenced by [the] jury.” Clearly, the wrong box was checked. We direct the trial court to correct this inadvertent error. | [
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RITA W. GRUBER, Judge
| íThis case arises out of divorce proceedings between Dana and Mike Shinn. While the case was pending, the Shinns entered into a separation agreement, which was accepted by the Lonoke County Circuit Court and incorporated by the court into an order entered on September 27, 2013. The separation agreement provided in part that Dana would live in the marital residence — which was owned by a trust benefitting their disabled, adult daughter, Ashten — so long as Ashten remained in the home. Dana agreed not to have any roommates unless the parties approved in writing. The court entered an order finding Dana in contempt for having roommates and ordered her to vacate the home. Dana appeals, arguing that the circuit court was without jurisdiction over the residence because neither she nor Mike holds any interest in the property and, therefore, it is not part of the marital estate. We find no error and affirm the court’s-order. •
|aThe parties do not dispute the facts. They have an adult daughter, Ashten, who is disabled. The residence at issue in this case is owned by a trust, set up for Ash-ten’s benefit. Neither party has an interest in the home, and no marital funds were used to purchase the home.
On December 6, 2012, Mike filed a complaint for divorce against Dana. While proceedings were pending in the case, on September 20, 2013,'the parties entered into a separation agreement to settle the property rights between them. 'Among other things, the agreement provided that Dana would have “use and possession” of the residence 'so long as Ashten lived in the home or Dana remarried (in the event of a divorce between the parties). Mike agreed to pay the electric bill, butane bill, taxes and insurance, and any major expenses and repairs to the residence. Dana agreed not to have any roommates at any time while she resided in the home “unless otherwise agreed to by the parties in writing.” On September 27, 2013, the circuit court entered an order accepting the separation agreement and incorporating it into its order.
On February 24, 2014, Mike filed a motion for contempt, alleging- that Dana had violated the parties’ separation agreement by having roommates and requested that she be ordered to vacate the residence. On April 10, 2015, the court held a hearing. Mike testified that Dana’s stepdaughters, Whitney and Kristin; then-husbands; and a family friend, Dwayne Thompson, had been living in the residence. He admitted that he had allowed Ashten’s fiancé, Michael Dibbons, to stay in the residence to help take care of Ash-ten.
| aMichael Dibbons testified that he had been living in the residence for about seven months with Mike’s permission. He said that he moved in to help take care of Ashten, that they planned to get married, and that he paid $400 monthly rent to Dana. He expressed concerns regarding Dana’s ability to provide care for Ashten because Dana drank to the point of intoxication “from the time she woke up to the time she went to bed.” He said Kristin and her husband had moved in and moved out several times before he moved in and while he had been there. He also said that Dwayne Thompson had lived in the residence on occasion.
Dana testified that she and Mike were Ashten’s guardians and that she was concerned about Michael’s ability to get Ash-ten to all of her medical appointments. She did not testify at all regarding Mike and Michael’s testimony about roommates at the residence.
The circuit court entered a decree of divorce on May 15, 2015, awarding a divorce on Dana’s counterclaim. The court found that the parties had entered into a separation agreement that was incorporated into the divorce decree. The court found that, pursuant to the agreement, the parties agreed that Dana could have “use and possession” of the residence with Ash-ten but could not have roommates. The court determined that the testimony indicated that multiple people had lived in the home without the agreement of the parties, that Dana had violated the agreement, and that she was in contempt. The court ordered her to vacate the residence within ninety days.
On appeal, Dana contends that the circuit court had no jurisdiction over the residence in this case because neither she nor Mike have an interest in the property. Therefore, she argues, the court erred in ordering her to vacate the home. Specifically, she claims that the | residence is owned by a trust and there is no evidence that marital funds have been used either to purchase or improve the home. Because the residence is not marital property, she argues, the court did not have authority to • make a ruling pertaining to it.
Dana is mistaken. The circuit court’s authority derives from the parties’ separation agreement, which they freely entered into. The agreement provides in pertinent part as follows:
It is the intention of the parties that this Agreement constitutes a full and complete settlement of all property rights both real, personal and mixed accruing to them by said marriage and that the terms of this Agreement be incorporated into any decree of divorce which may be entered or is contemplated to be entered in the event that a divorce action is commenced and the parties hereby petition the Court to give this Agreement the full force and effect of a decree of the Court.
As contemplated by the parties, the agreement was incorporated into an order entered by the court on September 24, 2013, and into the divorce decree on May 15, 2015. Its terms are part of the court’s September 2013 order and its divorce decree.
The agreement very clearly states that Dana agreed not to have roommates unless the parties agreed in writing. There is no evidence of a written agreement authorizing roommates. Both Mike and Michael testified that various people other than Ashten, Dana, and Michael had lived in the residence. Dana did not testify otherwise. The court found that Dana had violated the language of the agreement and was thus in contempt, and it ordered her to vacate the home. We will not reverse a circuit court’s finding of civil contempt unless that finding is against the preponderance of the evidence. Johns v. Johns, 103 Ark.App. 55, 59, 286 S.W.3d 189, 192 (2008). We hold that the court’s finding is not clearly against the preponderance of the evidence.
UAffirmed.
Glover and Brown, JJ., agree.
, The hearing was on Mike's motion for contempt and Dana’s counterclaim for divorce. | [
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BRANDON J. HARRISON, Judge
hFrom an appellate-jurisdiction point of view, this case exemplifies the adage that ho good deed goes unpunished. Cory Fletcher appeals the Benton County Circuit Court order that denied his request to find the Arkansas implied-consent law unconstitutional. We dismiss the appeal for lack of jurisdiction because the appeal from district court to circuit court was not timely made. That means this court, in turn, lacks jurisdiction to decide the merit of Fletcher’s appeal.
I.
In September 2012, Fletcher received a citation for DWI, broken windshield/obstruction, and refusal to submit to a chemical test (violation of the implied-consent law). On 11 December 2013, the Benton-ville District Court dismissed the DWI charge, and Fletcher pled guilty to refusal to submit to a chemical test. The obstructed] 2view charge was nolle prossed. On 20 December 2013, Fletcher filed a notice of appeal in both the district court and the Benton County Circuit Court. On 24 February 2014 — seventy-five days after the district court judgment had been entered — the district court record was filed with the Benton County Circuit Court.
At a hearing held in October 2014, Fletcher’s counsel discussed the timeliness of the appeal from district court:
The facts are that the transcript that would get the de novo appeal going was actually transmitted directly from the district court clerk to the circuit court clerk and it disappeared somewhere and had that not disappeared it would have been filed within the 30 days and the Court would have jurisdiction, which I think the Court does have jurisdiction.
The circuit court expressed doubt that it could “find jurisdiction” and stated that it thought “[the appeal] has to be filed within 30 days and that’s it.” The circuit court also noted that just because it’s the district court clerk’s practice to file' the district court transcript with the circuit court, “it isn’t incumbent upon them to get the appeal filed.” The circuit court’s statement was correct. Fletcher’s counsel, however, insisted that “we’re allowed to rely upon their declaration that has been done, and there’s'also a presumption, you know, stuff is mailed in the U.S. mails [sic] and it’s delivered. I can brief that issue if you want.” The court agreed to accept briefs.
In November 2014, Fletcher’s counsel and the prosecutor filed a joint “Motion to Have De Novo Appeal Filing Validated.” That motion stated the following:
3. The regular practice of the Benton-ville District Clerk is that she prepares the proper transcript and mails it to the Benton County Circuit Clerk for filing. This was done on December 24, 2013. The mail was sent by pre-paid regular first class mail.
|⅞4. The District Court transcript was not returned to the District Court by the post office.
5. The parties believe that the proper District Court transcript was properly mailed and delivered to the Benton County Circuit Court within the 30 days for filing for a de novo appeal. The parties believe that the paperwork was lost or mis-filed in the Benton County Circuit Clerk’s office by accident.
6. The law presumes that first class mail is delivered . unless returned to sender by the post office. The prosecution is unable to rebut that presumption.
Having made their joint argument, the parties asked the court to find that the district court transcript was filed properly and timely.
At a hearing held in April 2015, the circuit court was persuaded to change course and ruled that it had jurisdiction and that the appeal had been perfected. The court found that “any defects in the perfecting of that appeal have been waived and, of course, this court understands and knows that the normal process of how things were perfected in this jurisdiction, that’s how it’s done. The Court is going to find it to be perfected.” Later, in a written order entered in June 2015, the court ruled thus:
1. The court finds that the de novo appeal filed from the Bentonville Distinct Court to this court was timely and in conformity with all laws and rules related to de novo appeals. The court finds that the transcript of the lower court proceedings was mailed from the Bentonville District Court Clerk to the Benton County Circuit Court within the time limits for filing de novo appeals. The court finds that the Benton County Circuit Court Clerk received the transcript before the 30 days for filing expired. The court finds that it has jurisdiction of this appeal.
In this order, the circuit court also denied Fletcher’s motion to have the implied-consent law declared unconstitutional, found him guilty of violating the implied-consent law, and sentenced him to pay a fine of $500. This appeal followed.
II.
JjThe rules of criminal procedure decide the jurisdictional point at issue. Rule 36 of the Arkansas Rules of Criminal Procedure states that the time allowed for filing an appeal from district court to circuit court is thirty days from the date the judgment was entered in the district court. Ark. R.Crim. P. 36(b) (2014). The rule further states,
(c) How Taken. An appeal from a district court to circuit court shall be taken by filing with the clerk of the circuit court a certified record of the proceedings in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. The record of proceedings in the district court shall include, at a minimum, a copy of the district court docket sheet and any bond or other security filed by the defendant to guarantee the defendant’s appearance before the circuit court. It shall be the duty of the clerk of the district court to prepare and certify such record when the defendant files a written request to that effect with the clerk of the district court and pays any fees of the district court authorized by law therefor. The defendant shall serve a copy of the written request on the prosecuting attorney for the judicial district and shall file a certificate of such service with the district court. The defendant shall have the responsibility of filing the certified record in the office of the circuit clerk. Except as otherwise provided in subsection (d) of this rule, the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk.
(d) Failure of clerk to file record. If the clerk of the district court does not prepare and certify a record for filing in the circuit court in a timely manner, the defendant may take an appeal by filing an affidavit in the office of the circuit clerk, within forty (40) days from the date of the entry of the judgment in the district court, showing (i) that the defendant has requested the clerk of the district court to prepare and certify the record for purposes of appeal and (ii) that the clerk has not done so within thirty (30) days from the date of the entry of the judgment in the district court. The defendant shall promptly serve a copy of such affidavit upon the clerk of the district court and upon the prosecuting attorney. The circuit court shall acquire jurisdiction of the appeal upon the filing of the affidavit. On motion of the defendant or the prosecuting attorney, the circuit court may order the clerk of the district court to prepare, certify, and file a record in the circuit court.
lfiThe takeaway from Rule 36 is that it expressly states that a defendant has the burden to ensure that his or her appeal from district court is timely made. See Williams v. State, 2010 Ark. App. 525, 334 S.W.3d 873. The thirty-day filing requirement of Rule 36 is strictly enforced and is jurisdictional in nature. Frolos v. State, 2010 Ark. App. 498, 2010 WL 2404175.
There is apparently no question that the district court clerk was trying to be helpful during the appeal process. Nonetheless, the responsibility to ensure that an appeal is timely perfected from district court to circuit court cannot be shifted from the defendant to the clerk’s office.
The State knew this to be so. That is why, in January 2016, it moved this court to dismiss Fletcher’s appeal. In that motion, the State argues that the record of the district court proceedings was filed with the circuit court well outside the thirty days allowed by Rule 36(b), that the deadlines of Rule 36 are strictly enforced, and that no deference is owed to the circuit court’s jurisdictional finding.
In response, Fletcher asserts, as he did below, that the district court clerk mailed the district court transcript to the circuit court clerk within thirty days. He argues that “[sjince the transcript was not even due until January of 2014, and the mail was never returned to the district court, it is reasonable to believe that the mail was delivered to the circuit court within the 30 day time limit to file the transcript in the circuit court.” He also contends that the circuit court’s finding of jurisdiction was an issue of fact and that the State does not attempt ¡to show that the circuit court’s factual finding was wrong.
In support, Fletcher cites Hoelzeman v. State, 241 Ark. 213, 406 S.W.2d 883 (1966), a ease where the Arkansas Supreme Court reversed a circuit court’s dismissal of an | ^appeal from the justice of the peace court because the necessary transcript was not filed with the circuit court within thirty days. There, the appellant “made repeated requests of the Justice of the Peace to prepare and file the transcript perfecting his appeal to the circuit court and, in reply to each such request, the Justice of the Peace advised appellant that he would do so in time to protect the interest of appellant as to his appeal.” Id. at 215, 406 S.W.2d at 884. Importantly, the statutory language in effect at that time made clear that “the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days.” Id. at 217, 406 S.W.2d at 885 (quoting Ark. Stat. Ann. 26-1307, Vol. 1 (Repl. 1962)). After noting the appellant’s diligence and the applicable statutory language, the supreme court held that the appellant could not control the actions of the justice of the peace and that “it would abort the ends of justice to deny appellant de novo review in the circuit court.” Id. at 219, 406 S.W.2d at 886.
Hoelzeman doesn’t apply here because Rule 36 clearly states that Fletcher, as the defendant, had to ensure that his .appeal from district court was perfected in a timely manner. See Williams, supra. But it wasn’t; Fletcher’s appeal from district court was filed forty-five days late. Unfortunately, no well-intentioned circuit court decision or courteous district clerk practice can circumvent Rule 36’s plain terms, so we must dismiss this appeal for lack of jurisdiction.
Motion -to dismiss granted; appeal dismissed.
Virden and Kinard, JJ., agree. | [
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Jim Hannah, Chief Justice.
Arkansas Residential Assisted Living Association, Inc., Baxter Retirement Village, LLC, and Retirement Centers of Arkansas, Inc. (collectively referred to as the Association) appeal a decision of the Pulaski County Circuit Court finding that regulation 500M of the Health Services Permit Commission does not violate the statutes concerning assisted-living facilities in Arkansas. The Association argues that in applying regulation 500M and failing to count residential-care-facility permits of approval in its count of assisted-living permits of approval, the Commission is in violation of its statutory duty to evaluate the availability and adequacy of assisted living health-care services provided by Act 1230 of 2001. We hold that the Commission’s rule is not in conflict with the assisted or other long-term-care statutes.
Facts
The issue in this case concerns permits of approval to operate long-term-care facilities. A permit of approval is required before anyone may begin operation of a long-term-care facility. The statutes concerning long-term-care facilities are found in title 20, chapter 10 of the Arkansas Code Annotated, and under Act 1238 of 1993, the State began to issue permits of approval for “residential-care facilities.” Residential-care facilities are facilities for those persons whose functional capacities are not so severely impaired that they require hospitalization or nursing home care, but who do require some assistance with daily living. In 2001, pursuant to the Arkansas Assisted Living Act, the State began to issue permits of approval for operation of assisted-living facilities. Assisted-living facilities provide persons with housing, meals, laundry, socialization, transportation, personal services, and limited nursing services. Both parties agree that there is an overlap in the services provided by residential and assisted-living facilities.
The Association argues that residential-care facilities and assisted-living facilities serve the same population. The Association further argues that pursuant to statute, permits of approval for residential-care facilities must be considered and counted as permits of approval for assisted-living facilities when the Commission determines the adequacy of the number of assisted-living facilities in the various locales and areas of the state. The Association also further argues that regulation 500M violates the statutory obligation to assure adequate long-term-care facilities and services by allowing the Commission to ignore already issued permits of approval for residential-care facilities in forecasting and deciding on the number of permits of approval needed to serve the population in various locales and areas of the state. The Association asserts that the population served by residential care and assisted-living facilities will be overserved under the application of regulation 500M, or in other words, that there will be substantially more accommodations available for this population than will be needed.
Both the Commission and the Association filed motions for summary judgment. The circuit court found that the regulation was valid, stating:
Following the commission’s evaluation and interpretation of the relevant statutes, this court cannot say that the Commission has acted in an arbitrary or capricious manner, or that it abused its discretion. Rather, there is substantial evidence to support the Commission’s decision to issue HSC Regulation 500M, Assisted Living Methodology, based on research of the Arkansas Health Service Permit Agency.
The Association appeals, arguing the circuit court erred.
Standard of Review
The Association appeals the circuit court’s order granting summary judgment in favor of the Commission. Summary judgment is to be granted by a trial 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. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005). 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 its motion leave a material fact unanswered. Id. This court views evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts. Id.
The Association filed a declaratory judgment action in circuit court challenging the validity of regulation 500M Assisted Living Methodology as allowed under the Arkansas Administrative Procedure Act. See Ark. Code Ann. § 25-15-207 (Repl. 2002). As previously stated, the Association alleged that rule 500M violates the Assisted Living Act because the Assisted Living Act requires that all residential facilities’ permits of approval be counted as assisted-living permits of approval. We are thus asked to interpret the Commission’s regulation. When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. Ark. Health Servs. Comm’n v. Reg’l Care Facilities, Inc., 351 Ark. 331, 93 S.W.3d 672 (2002). In reviewing the adoption of regulations by an agency under its rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Id. A court will not attempt to substitute its judgment for that of the administrative agency. Id. A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case. Id.
The Duties of the Commission
The Association argues that the Commission is under an obligation to determine the actual needs of Arkansans for assisted-living accommodations. Pursuant to Ark. Code Ann. § 20-8-103(a) (Supp. 2003), the Commission “shall evaluate the availability and adequacy of health facilities and health services as they relate to long-term-care facilities. ...” Further, under Ark. Code Ann. § 20-8-103(b) (Supp. 2003), the Commission “shall designate those locales or areas of the state in which . . . the health service needs of the population are underserved.” Under Ark. Code Ann. § 20-8-103(c) (Supp. 2003), the commission “may specify within locales or areas, categories of services which are underserved and overserved. . . .”
According to Ark. Code Ann. § 20-8-103 (a) and Ark. Code Ann. § 20-8-104 (Supp. 2003), the Commission is to evaluate the adequacy of health facilities, and through the Health Services Permit Agency, the Commission is responsible for permitting of health facilities. Permitting includes analysis of issues such as whether a new health facility is needed, whether the facility can be staffed, whether it is economically feasible, and whether it will foster cost containment. See, e.g., Ark. Code Ann. § 20-8-107 (Supp. 2003). The purpose behind the statutes is to provide adequate and appropriate health facilities and services, for example as is set out in the Arkansas Assisted Living Act, where the purpose is stated as promoting “the availability of appropriate services” for those who need assisted-living services. Ark. Code Ann. § 20-10-1702(a)(1) (Supp. 2003). The Association argues that one purpose of the Assisted Living Act is to “ensure that ‘permits of approval’ are based on actual needs of Arkansans.” To the extent that the Association is arguing that this means assuring availability of adequate and appropriate facilities and services, the Association is correct.
Whether Permits of Approval for Residential-Care Facilities Must be Counted as Permits of Approval for Assisted-Living Facilities
The Association argues that residential-care facilities and assisted-living facilities serve the same needs of the same population. Based on this premise, the Association argues that under Ark. Code Ann. § 20-10-1709(a) (Supp. 2003), which provides that permits of approval for residential-care facilities “shall also be considered permits of approval for assisted living without further action,” all permits of approval for residential-care facilities must be counted as permits for approval of assisted-living facilities. The Association argues that if this is not done, more accommodations for this population will be created than needed.
The purpose of long-term-care statutes is to assure adequacy and availability of appropriate health care facilities and services to the populations that need them. The Association acknowledges that it is concerned about added competition, but also argues that “overbedding” of health care facilities can result in higher costs. Higher costs would certainly run counter to the cost containment concern noted in Ark. Code Ann. § 20-8-107. In that same section, the General Assembly notes concern for whether the facility can be adequately staffed and whether the project is economically feasible. Based on the purpose of long-term care regulation, to assure that adequate and appropriate health care facilities and services are available, it can certainly be argued that regulations that make provision of services unfeasible certainly do not comply with the obligation to provide adequate and appropriate health care facilities and services.
The Commission evaluates the need for residential-care facilities and the need for assisted-living facilities separately. While as the Association notes, Ark. Code Ann. § 20-10-1709(a) provides that “permits of approval for residential-care facilities shall be considered permits of approval for assisted-living facilities without further action,” Ark. Code Ann. § 20-10-1704(h)(l) (Supp. 2003) provides that “residential-care facilities that choose not to become assisted-living facilities will be permitted to provide Medicaid personal care for those residents.” Therefore, it is clear that the legislature did not intend that residential-care facilities automatically become assisted-living facilities without some action on the part of the residential-care facility. Consistent with this conclusion, Ark. Code Ann. § 20-10-1707 (Supp. 2003) requires that a license be acquired in order to operate an assisted-living facility. Similarly, Ark. Code Ann. 20-10-1702(a)(4) (Supp. 2003) provides that “[Residential care facilities have been providing many assisted-living services for years and should be allowed to participate in the assisted-living program.” Also, residential-care facilities are to be included “in the assisted-living program.” Ark. Code Ann. § 20-10-1702(a)(5) (Supp. 2003). Based on the above, we reject the claim by the Association that permits of approval for residential-care facilities must be counted as permits of approval for assisted-living facilities. Therefore, regulation 500M is not invalid on the basis that it conflicts with Ark. Code Ann. § 20-10-1709.
Statutory Duty to Evaluate Adequacy of Facilities
The Association also argues that under regulation 500M, the failure to consider residential-care facilities as assisted-living facilities violates the Commission’s obligation to evaluate the adequacy of long-term-care facilities under Ark. Code Ann. § 20-8-103. As the circuit court noted, the decision to issue and abide by regulation 500M was not arbitrary. The Commission and the Health Services Permit Agency engaged in significant research and analysis before issuing regulation 500M. Not only were Arkansas statutes considered, but there were also surveys undertaken regarding how other states were serving their populations who needed assisted-living services. The Commission also held meetings with providers and others to discuss Arkansas facilities and the needs in Arkansas. In addition, as the Commission notes, population projections were considered, and there was a considered decision on just what services and facilities would be needed in the future in Arkansas. Based on the statutes cited and the facts of this case, we cannot say that the administrative action in adopting regulation 500M was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Dickey, J., not participating.
Ark. Code Ann. §§ 20-10-1701 — 1709 (Supp. 2003).
Ark. Code Ann. § 20-8-109 (Supp. 2003).
Licensing and regulation of nursing homes by the State had commenced previous to Act 1238 of 1993.
Ark. Code Ann. § 20-10-101(13) (Repl.2000).
Ark. Code Ann. § 20-10-1703(3) (Supp. 2003). | [
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Per Curiam.
In a per curiam entered in this case on October 6, 2005, appellant was directed to file an assertion of indigency, verified by a supporting affidavit, in order to determine her status as an indigent. A proper assertion and supporting affidavit have been filed. Therefore, we grant appellant’s motion to proceed in forma pauperis and appoint Garry Corrothers to represent her in this appeal. | [
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Tom Glaze, Justice.
Appellants Katrina Valley and Meranda Valley appeal a ruling of the Phillips County Circuit Court denying their motion for class certification. The facts giving rise to this case involve a fire that began around 6:30 in the morning on November 3, 2000, at the Global Materials chemical warehouse in Helena. At approximately 12:30 that afternoon, a truck carrying a load of zinc oxide to the terminal also caught on fire and exploded. In response, Chief Reginald Wilson of the Helena Fire Department ordered an evacuation that covered a 1.5 mile radius from the chemical plant, which included most of Helena and the Isle of Capri Casino in Mississippi.
In August of 2001, a class-action lawsuit was filed in the name of Katrina Valley, individually and as parent and next friend of her children, Christian Anderson, Keishon Anderson, Kyrin Anderson, and Justin Anderson; and Meranda Fonzye Valley, individually and as parent and next friend of Brittany L. Valley, Kimberla A. Valley, and Omarrian Wilson. The complaint alleged that the plaintiffs brought the suit on behalf of themselves and all other persons similarly situated, with the potential class described as “all persons who resided or were present in the residential areas of Helena, Arkansas, [who] were evacuated on or about November 3, 2000, as a result of acts of the defendants. It is believed that the class consists of approximately 6000 persons.” The named defendants were National Zinc Processors, Inc.; Stoller Enterprises, Inc.; Global Material Services, LLC; Nationwide Express, Inc.” and John Does 1, 2, and 3.
The plaintiffs filed a motion for certification as a class action on January 30, 2003. The trial court held a hearing on the motion on February 23, 2004, to consider the issue of certification. After that hearing, the trial court issued a letter opinion on May 10, 2004, in which the court initially agreed that class certification was appropriate. However, the letter opinion made no mention of the requirements of Ark. R. Civ. P. 23(b), nor did it address the various defenses raised or specifically define the class. On May 18, 2004, National Zinc Processors filed a motion requesting findings of fact and conclusions of law. Defendants Stoller Enterprises filed a similar motion on May 24, 2004.
After a second hearing on August 14, 2004, the trial court entered an order on November 18, 2004, setting out its findings of fact and conclusions of law, and denying the plaintiffs’ motion for class certification. The plaintiffs filed a timely notice of appeal on December 17, 2004, and now raise two arguments for reversal: 1) the trial court did not have jurisdiction to enter its order denying class certification; and 2) the court erred in denying the motion to certify the class.
In her first argument on appeal, plaintiff, and now appellant, Katrina Valley, claims that the trial court erroneously treated the defendants’/appellees’ motions for findings of fact and conclusions of law as motions for reconsideration, and that the court lost jurisdiction to reconsider its May 11, 2004 decision when more than thirty days elapsed after the defendants filed their motions. Valley relies on Rules 52, 58, and 59 of the Arkansas Rules of Civil Procedure, arguing that the court’s November 18, 2004, order was not consistent with its “letter order” of May 10, 2004, nor did the court’s ruling come within thirty days of the defendants’ motions, as required by Rule 59.
Rule 59 has no application in this instance. That rule permits a party to move for a new trial on various grounds within ten days of the entry of a judgment. Ark. R. Civ. P. 29(b) (2005). Here, no trial has been had and no judgment has been entered in the case; rather, the only order entered has been the trial court’s, order denying the plaintiffs’ motion for class certification, which was entered on November 18, 2004.
In addition, Valley ignores the plain language of Ark. R. Civ. P. 23(b), which provides in relevant part as follows:
As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.
(Emphasis added.) See also Lenders Title Company v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003) (under Rule 23(b), a class-certification order is not a final order); Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999) (“[although the court’s initial decision under Rule 23(c)(1) that an action is maintainable on a class basis in fact may be the final resolution of the question, it is not irreversible and may be altered or amended at a later date”).
On the issue of subsequent class determinations upon reconsideration, Professor Newberg’s treatise on class actions offers the following:
Because class rulings may be altered or amended at any time before a decision on the merits, class rulings are often reconsidered, and subsequently affirmed, altered, modified, or withdrawn. Apart from instances where the initial ruling is affirmed, classes have been upheld on reconsideration after being denied originally, and have been denied on reconsideration after being upheld originally. ... Such a reconsideration may be raised either by the plaintiffs or by the defendant’s motion, or automatically by a schedule previously set by the court. Finally, a court may, on its own motion, reconsider its earlier ruling.
3 A. Conte and H. Newberg, Newberg on Class Actions § 7.47, 154-57 (4th ed. 2002). In sum, we find no merit to Valley’s contention that the trial court “lost jurisdiction” to reconsider its earlier decision regarding the certification of a class action.
We now turn to the merits ofValley’s argument wherein she contends that the trial court erred in denying class certification. The certification of a lawsuit as a class action is governed by Ark. R. Civ. P. 23. The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court’s decision absent an abuse of that discretion. Lenders Title Company v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004); Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002). In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification. USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). However, the determination is purely a procedural question. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). This court will not delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. State Farm Fire & Casualty Co. v. Ledbetter, 355 Ark. 28, 129 S.W.3d 832 (2003).
Rule 23 provides in relevant part as follows:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
In short, this court has held that, in order for a class-action suit to be certified the party seeking certification must establish each of the following six factors: (1) numerosity; (2) commonality; (3) predominance (4) typicality; (5) superiority; and (6) adequacy. BPS Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). When a party cannot demonstrate that he or she has satisfied all six factors, class certification is inappropriate. See Ferguson v. The Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001) (where plaintiffs failed to satisfy the numerosity requirement, this court affirmed the trial court’s denial of class certification without addressing the other five factors); Mega Life & Health Ins. Co. v. Jacob, 330 Ark. 261, 954 S.W.2d 898 (1997) (there must be evidence in the record to support a conclusion that all six elements of class certification have been satisfied).
We affirm the trial court’s denial of class certification in this case because the named plaintiffs have failed to demonstrate that they satisfy the adequacy requirement of Rule 23. Rule 23(a)(4) specifically requires that the representative parties must be able to fairly and adequately protect the interests of the class. This court has previously interpreted Rule 23(a)(4) to require three elements: 1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. See, e.g., Mega Life & Health Ins. Co. v. Jacola, supra; Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997).
In the present case, there has been no contention that counsel for the class is in any way unqualified or inexperienced. Nonetheless, that is not the only factor we must consider. Here, the only named plaintiff to testify at the class-certification hearing was Meranda Valley, the former sister-in-law of counsel for the plaintiff class. Meranda did not testify that she had read the complaint or understood her duties as class representative, nor did she offer any testimony about her ability to assist in decision- making as to the conduct of the litigation. Further, Meranda testified that she was not even in the evacuation zone at the time of the fire, had no exposure to any of the chemicals that were allegedly released into the air, and did not personally have to evacuate; for this reason, the trial court found that it was inappropriate for Meranda to serve as a class representative. In addition, the trial court noted that two of the children whom Meranda purported to represent had reached the age of majority, and as such, it would be improper for her to represent the interests of those children.
Counsel for the plaintiffs also presented the deposition testimony of Katrina Valley at the certification hearing. Katrina testified that she did not know how many people might have been physically injured as a result of the fire; she did not know how many purported class members were forced to evacuate or how long they were out of their homes; and she did not know what kinds of damages other individuals might be seeking. Additionally, as with Meranda, Katrina offered no evidence or testimony that she understood what her duties and responsibilities as the named representative would be.
As noted above, in Direct General Insurance Co. v. Lane, supra, this court held that the “adequacy of representation” element is satisfied if the representative displays a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. See also Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995); Union National Bank v. Barnhart, 308 Ark. 190, 198, 823 S.W.2d 878, 882 (1992). The Lane court held that where the named plaintiff testified that she understood the responsibility she was undertaking by agreeing to become the class representative, had visited with the attorney several times about the case and had reviewed the relevant documents, and had otherwise demonstrated her commitment to pursing the case against the defendant, she had proven that she would be an adequate class representative. In the present case, by way of contrast, the trial court was presented with absolutely no evidence that would have shown that either Katrina or Meranda Valley possessed such characteristics and would be an adequate representative. Therefore, the court did not abuse its discretion in finding that the adequacy requirement had not been satisfied. Because the plaintiffs failed to satisfy all six of Rule 23’s require ments, the trial court likewise did not abuse its discretion in denying the motion for class certification.
Brown and Imber, JJ., dissent.
Brittany Valley, Kimberla Valley, Omarrian Wilson, and Katrina Valley are Meranda’s children; Christian, Keishon, Kyrin, and Justin Anderson are Katrina Valley’s children.
Nationwide Express moved to dismiss the August 2001 complaint against it for failure of service; that motion was granted. In 2002, the same plaintiffs filed an identical complaint against the same defendants; this time, only Nationwide Express was served with process. The 2001 and 2002 complaints were eventually consolidated.
In November of 2003, just before the three-year statute of limitations expired, over 6000 people filed a complaint against the same defendants, again raising the same allegations. At the class-certification hearing in the instant case, counsel for the plaintiffs alleged that the suit had been filed “in part because class certification status had not been achieved in the [Katrina] Valley case.” | [
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Tom Glaze, Justice.
In this medical-malpractice suit, our court is asked to determine when it is appropriate to give a modified form of AMI Civ. 4th 602, which deals with the right to assume others will use ordinary care and obey the law.
Appellant Daphne England became pregnant in 1997; her due date was December 24, 1997. That date came and went, and England had not gone into labor, so her obstetrician, appellee Dr. Emil Costa, asked her to come back to see him on December 31, 1997. England was still not showing signs of delivery by that date, so Dr. Costa scheduled a nonstress test for January 2, 1998. However, England came to the hospital with contractions early in the morning on January 1, 1998, and she was hooked up to a fetal monitor for a number of hours. At 4:10 a.m., the monitor strip showed that the baby had a baseline heart rate of around 120, within normal ranges. At 4:16 a.m., however, the baby’s heart rate dropped down, went back up, and then dropped back down again. This deceleration, or slowing of the heart rate, lasted about four minutes. The nurses attending England did not inform Dr. Costa of the deceleration.
Dr. Costa arrived at the hospital around 8:30 a.m. on January 1, 1998, at which time he reviewed the monitor tracing. His impression of the strip was that England was having mild irregular contractions. Despite the earlier deceleration, the activity reflected on the strip was reassuring and “within a normal range,” and so Dr. Costa sent England home to wait one more day.
England returned to the hospital on January 2, 1998, at which time her cervix was only dilated to one centimeter. Dr. Costa performed another nonstress test, which showed lots of accelerations and good variability in the baby’s heart rate. Because of this good result, Dr. Costa decided to wait another forty-eight hours to see if England would go into labor; if not, he would have her return to the hospital on January 4, 1998, to induce labor.
England returned to the hospital with irregular contractions around 10:30 a.m. on January 4. Her pregnancy was at forty-one weeks and four days, but she was still only dilated to one centime ter. She was again hooked up to a fetal monitor, which showed a lot of accelerations, good variability, and no significant decelerations. Dr. Costa came to the hospital around 12:30 or 12:40 p.m. and reviewed the monitor strips; he then applied Cytotec, a drug intended to induce labor. Afterwards, he watched England for a period of time, then left the hospital. England experienced a deceleration around 1:30 p.m., but the nurse on duty failed to tell this to Dr. Costa. Dr. Costa again returned to the hospital about 6:00 p.m. and reviewed the most recent hour and a half of the monitor strip, which looked normal. He also asked the nurse, Missy Barham, if anything had happened after he last left; despite knowing about the earlier deceleration, Barham said, “no.”
As of 6:00 p.m. on January 4, 1998, England had dilated to about one-to-two centimeters; the fetal heart rate was 110 to 120; there were no decelerations at that time; England was having contractions every two to three minutes; and there was no distress. Based on this information, Dr. Costa decided to let England’s labor move forward, as opposed to performing a cesarian section. Dr. Costa went to bed around 9:30 or 10:00 p.m. that night. Before going to bed, he called the hospital and left orders that, if England did not go into labor by 3:00 or 3:30 a.m., he wanted to start her on Pitocin to induce labor.
At 2:21 a.m., England reported to the nurses that she felt the need to have a bowel movement. The nurse’s notes from that time reflected that the fetal heart rate was 120, which indicated that the baby was still doing well. However, according to Dr. Costa’s testimony, the urge England felt was more than likely the baby’s head putting pressure on her pelvis. Dr. Costa averred that the nurses should have conducted a pelvic examination and called him to return to the hospital. No pelvic exam was performed until 2:40 a.m., at which time the nurses noticed that England’s cervix had dilated to nine centimeters.
However, Dr. Costa did not hear from the hospital until 2:51 a.m., when Nurse Everett called to say the baby’s heart rate was down and was not coming up. Dr. Costa immediately called for an emergency cesarian section and returned to the hospital, but when he arrived at the operating room, no surgical staff was present. Dr. Costa ended up performing an emergency cesarian section with only one nurse present to assist him. The baby, Morgan England, was delivered at 3:24 a.m., January 5,1998, with cerebral palsy, which, according to England’s expert witness, was most likely caused by a “significant hypoxic insult in the time immediately prior to the emergency cesarean section.”
England and her husband, Larry England, sued Dr. Costa and the hospital. The Englands eventually settled with the hospital for $2.5 million, and the case proceeded to trial against Dr. Costa alone; the Englands informed the jury of the settlement and admitted that the negligence of the hospital and the nurses was a proximate cause of their damages. Just prior to submitting the case to the jury, the parties and the court struggled to agree on whether or not to give a modified form of AMI Civ. 4th 602 to the jury.
As written, AMI Civ. 602 provides that “[e]very person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will [used ordinary care] [and] [obey the law]. To act on that assumption is not negligence.”
The Englands argued that the instruction had only been applied in automobile-accident cases in which contributory negligence was an issue. The trial court ultimately rejected the Englands’ argument and gave a modified version of the instruction to the jury, as follows:
Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.
After deliberating, the jury returned a verdict in Dr. Costa’s favor on February 26, 2004.
The Englands filed a motion for new trial on March 26, 2004, in which they alleged that the trial court improperly in structed the jury. The effect of the erroneous instruction, they contended, was that the jury was urged toward the defense’s theory of the case and rendered a verdict that was contrary to the preponderance of the evidence. After a hearing on April 13, 2004, the trial court denied the Englands’ motion for new trial, noting that while the issue was one of first impression, and there were no reported Arkansas cases in which the instruction had been given in a medical-malpractice case, the court believed it was a proper instruction. The Englands filed a timely notice of appeal on April 14, 2004.
In their sole point on appeal, the Englands argue that, as a result of the erroneous charge to the jury, the verdict was contrary to the preponderance of the evidence. In their complaint, the Englands alleged that Dr. Costa was negligent in failing to properly evaluate the entirety of the fetal monitor strip on January 4, 1998 (as well as the days leading up to January 4), and in failing to respond to the abnormalities and decelerations on the strip by performing a cesarean section on January 4. The Englands further alleged that the nurses were negligent when they failed to properly evaluate the fetal monitor strip and failed to keep Dr. Costa informed of the information on the monitor strip. The effect of the modified AMI Civ. 602 instruction, the Englands contend, is that Dr. Costa was insulated from liability because the instruction informed the jurors that Dr. Costa could not be negligent for assuming that the nurses would not act negligently. By telling the jurors that Dr. Costa had a right to rely on the nurses to use ordinary care, the Englands assert, there was no way that Dr. Costa could have been found negligent.
The crux of the Englands’ argument is that AMI 602 is only intended to be used in cases involving contributory negligence, and they assert that the cases addressing the instruction are all contributory negligence cases, usually involving automobile accidents. See, e.g., Rexer v. Carter, 208 Ark. 342, 186 S.W.2d 147 (1945); Kirby v. Swift & Co., 199 Ark. 442, 134 S.W.2d 865 (1939); Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856 (1927) (opinion on rehearing). As such, they contend, given the fact that there was no allegation that Daphne England was herself negligent in any way, the instruction should not have been used at all, let alone in the modified form in which it was given in the instant case. We agree.
Rexer v. Carter, supra, involved an automobile accident in which the defendant, Rexer, ran a stop sign and collided with Carter. Carter sued, and Rexer defended by saying that Carter should have known that he could not observe the traffic that was approaching the intersection. The trial court submitted to the jury the questions of negligence and contributory negligence, and the jury found in Carter’s favor. This court affirmed the use of the instruction, noting that the jury could have found from the testimony that Carter was not bound to anticipate Rexer’s recklessness in running a stop sign. In so affirming, this court noted that the driver of an automobile has the right to assume that the driver of another automobile will obey traffic laws, and he is not guilty of contributory negligence in acting upon such assumption. Rexer, 208 Ark. at 345.
Likewise, in Kirby v. Swift, supra, this court held that a plaintiff had the right to assume that no one would park a car on the road without lights; in such a situation, the issue of whether the plaintiff was exercising ordinary care was a question for the jury to examine in determining whether the plaintiff had been contributo rily negligent. Kirby, 199 Ark. at 868.
Finally, in Coca-Cola Bottling Co. v. Shipp, supra, this court held, on rehearing the case, that the “better rule” was to let a jury decide whether a plaintiff had been contributorily negligent. Relying on Murphy v. Hawthorne, 117 Or. 319, 244 P. 29 (1926), the Shipp court wrote as follows:
While some courts have announced a hard and fixed rale that it is negligent to drive an automobile at such rate of speed that it cannot be stopped within the range of the driver’s vision, . . . we think it improper to do so. . . . After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? ... Plaintiff had a right to assume, in the absence ofnotice to the contrary, that defendant would not put this dusty gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might well have drawn the reasonable inference that plaintiff would have been able to avoid striking it.... While there is authority to the contrary, we believe the better reasoned cases support the holding that whether plaintiff failed to exercise due care to avoid the collision was a question of fact for the jury.
Shipp, 174 Ark. at 138 (emphasis added). Clearly, Shipp, Kirby, and Rexer all involved situations in which there was a question as to whether the plaintiff had been contributorily negligent.
Further analysis of cases from other states with a similar jury instruction make it plain that the instruction should only be given when contributory negligence is an issue. Particularly instructive are cases from California involving that state’s instruction, California Civil Jury Instruction (BAJI) 3.13, which is essentially similar to our AMI 602. The California instruction provides as follows:
Every person who is exercising ordinary care, has a right to assume that every other person will perform [his] [her] duty [and obey the law]. In the absence of reasonable cause for thinking otherwise, it is not negligence for a person to fail to anticipate an accident which can occur only as a result of a violation of [law] [or] [duty] by another person.
California cases citing this instruction are unequivocal in holding that the instruction should not be used when there is no evidence of violation of the law or a duty by the plaintiff. See Springer v. Reimers, 4 Cal. App. 3d 325, 84 Cal. Rptr. 486 (1970) (instruction was not proper where the plaintiff was not contributorily negligent); Eramdjian v. Interstate Bakery Corp., 153 Cal. App. 2d 590, 315 P.2d 19 (1957) (no error in refusing to give the instruction when there was no evidence that the plaintiff had violated the law or a duty; giving the instructions under these facts would only have confused the jury).
Other jurisdictions have similarly only applied the rule in contributory negligence cases. See Vaughn v. Porter, 140 Idaho 470, 95 P.3d 88 (2004) (assumption that all other drivers on the road are exercising ordinary care does not apply when the driver/plaintiff herself is not exercising ordinary care); Flowers v. South Carolina State Highway Dep’t, 206 S.C. 454, 34 S.E.2d 769 (1945) (a traveler on the highway, exercising due care himself, in the absence of any circumstances which reasonably should put him on notice to the contrary, is entitled to assume, and to act upon the assumption, that others using the highway in common with him will exercise reasonable care).
In sum, where there is no evidence of contributory negligence, AMI 602 should not be given. Generally speaking, when the instruction is utilized in a contributory negligence case, the phrase “every person” in the instruction is intended to refer to the plaintiff. Here, however, the jury was instructed that “every physician” is entitled to the assumption that other medical-care providers are not being negligent. In other words, the instruction informed the jury that a defendant is entitled to the presumption. This utilization of the instruction in this context was entirely improper, and is not to be countenanced. Obviously, there was neither evidence nor intimation that Daphne England was negligent in any manner. The trial court was clearly wrong in giving AMI 602 in any form.
This court has held that when a trial court gives an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice. See Skinner v. R.J. Griffin & Co., 313 Ark. 430 , 855 S.W.2d 913 (1993). Such a requirement is often an impossible burden, and the requirement of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. Id.; see also Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996). On the other hand, we have also held that the error may be rendered harmless by other factors in the case. See Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). This court noted in Skinner, supra, that examples of harmless error would be where the jury demonstrably was not misled because the jury rejected the theory of the erroneous instruction, or where the erroneous instruction was obviously cured by other correct instructions. Skinner, 313 Ark. at 435.
Thus, we must consider whether the giving of the improper instruction constituted harmless error. The Englands frame the issue before the jury as follows: Given that the hospital nurses did not timely contact Dr. Costa concerning the decelerations on the fetal monitoring strip, was Dr. Costa under an independent duty to discover those decelerations himself, and if so, was his failure to do so a proximate cause of Morgan England’s brain damage? The crux of the Englands’ argument is that the giving of AMI 602 answered the first of these two questions in the negative, by informing the jury that he had the right to assume that the nurses were not behaving negligently (even though they admittedly were negligent in failing to inform him of the decelerations on the monitor strip). And in giving the erroneous instruction, the trial court essentially prevented the jury from considering whether Dr. Costa’s failure to read the strip, in and of itself, constituted a failure to meet the standard of care of “possessing] and applying] with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing in the same or a similar locality.”
Dr. Costa, on the other hand, asserts simply that there was overwhelming evidence that his negligence had nothing to do with the baby’s brain damage; he points out that experts on both sides testified that Morgan England was perfectly healthy and normal until approximately 2:10 a.m. on January 5, 1998. Accordingly, the doctor claims, his failure to notice the decelerations on the monitor strip earlier in the day on January 4, 1998, could not have been the proximate cause of Morgan’s injuries.
Had the jury not been given the AMI 602 instruction, Dr. Costa might have had a valid argument. Without the giving of the erroneous instruction, it would have been clear that the jury determined that Dr. Costa “possessed and applied with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or in a similar locality,” and that there was no negligence on his part that was the proximate cause of Morgan’s injuries.
Here, however, the verdict form asked the jury to answer the question, “Do you find from a preponderance of the evidence that there was negligence on the part of Dr. Costa, which was a proximate cause of any damages?” The jury answered no. Given this general verdict, coupled with the jury having been given the erroneous instruction, it is impossible to determine whether the jury believed that Dr. Costa was not negligent because he comported himself in accordance with the standard of care required of all physicians, as described above, or whether the jury determined that he was not negligent because he was entitled to assume that the nurses were not negligent, which was an incorrect statement of the law.
As noted above, this court has held that, in cases involving a trial court’s giving of an erroneous jury instruction, we will not require an appellant to demonstrate prejudice. See Skinner, supra. Further, we have held that when an erroneous instruction has been given and a jury has rendered a general verdict from which prejudice due to the error cannot be ascertained, we must reverse. See Dillard Department Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). Accordingly, because it is impossible to determine the degree to which the improper instruction tainted the jury’s consideration of Dr. Costa’s negligence, we must reverse and remand this case.
Gunter, J., not participating.
Imber, J., concurs.
According to the plaintiffs’ expert, Dr. Bernard Weiss, a nonstress test involves applying sound waves to the uterus in order to stimulate accelerations in the baby’s heart rate; the point is to test the baby’s heart rate and make sure that the heart rate is normal.
According to one doctor’s testimony, based on his reading of the medical records, Morgan “required major resuscitation” and did not breathe for approximately eleven minutes after she was delivered.
The language altered and inserted by the trial court is italicized.
The comments to AMI 602 direct the reader to 65 C.J.S. Negligence § 281 cl seq. (2000). That section of C.J.S., in turn, encompasses a discussion of the “last clear chance” doctrine, which provides generally that the plaintiff who negligendy subjects himself or herself to a risk of harm may recover when the defendant discovers or could have discovered the plaintiffs peril had he or she exercised due diligence, and thereafter fails to exercise reasonable care to avoid injuring the plaintiff. 65 C.J.S. Negligence § 281 (2000). The last clear chance doctrine is applicable only to excuse the contributory negligence of the plaintiff Id. at § 282. The doctrine requires, among other things, that there be negligence on the part of the plaintiff. Id. at § 285. Our court of appeals, however, has recently noted that neither the doctrine of last clear chance nor assumption of the risk is the law of Arkansas, and that both doctrines have been subsumed by the adoption of the comparative negligence statutes in 1955 and 1957. See Miller v. Hometown Propane Gas, Inc., 86 Ark. App. 189, 110 S.W.3d 304 (2004).
In his brief, Dr. Costa attempts to rely on a recent California case in which this instruction was given in a medical malpractice action. See Estate of Harrar v. Teregis, 2002 WL 863171 (Cal. App. 2002). However, this is an unpublished opinion, and California’s court rules prohibit the citation to or rebanee on opinions that have not been certified for publication or ordered published. See Cal. Rules of Ct. 977(a).
See also Ark. Code Ann. § 16-114-106(a) (Supp. 2005). | [
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Annabelle Clinton Imber, Justice.
The State appeals a judgment entered by the Lonoke County Circuit Court in which the court sentenced Appellee Tiffany Joslin to five years’ probation after she pled guilty to a charge of violating Ark. Code Ann. § 5-4-403 (Supp. 2005), a Class C felony, as a habitual offender under Ark. Code Ann. § 5-4-501 (Supp. 2005). Specifically, the State contends on appeal that probation is an illegal sentence because probation is not an option under the criminal code in the sentencing of a habitual offender. We find merit to this appeal and reverse and remand for resentencing.
Appellee was charged with obtaining a controlled substance, in violation of Ark. Code Ann. § 5-4-403, and with being a habitual offender under Ark. Code Ann. § 5-4-501 (a). On April 14, 2005, she pled guilty to the charges. Several months later, on June 7, 2005, the circuit court held a hearing and issued an order whereby Appellee was sentenced to five years’ probation, with three of the five years to be supervised and with continuation in her drug treatment program to be at her own expense and for so long as required by her probation officer. The court also assessed a fine of $400 and $150 in court costs. The State objected to the court’s imposition of probation, arguing that section 5-4-501 (a) mandated a term of imprisonment of no less than three years and no more than twenty years due to Appellee’s status as a habitual offender convicted of a Class C felony. The circuit court overruled the State’s objection and sentenced Appellee to probation. From the entry of this judgment, the State brings this appeal.
The State’s ability to appeal is not a matter of right; rather, it is limited to those cases described under Ark. R. App. P. - Crim. 3. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Under Rule 3, we accept appeals by the State when our holding would establish important precedent or would be important to correct and uniform administration of the criminal law. Id. Sentencing and the manner in which statutory punishment provisions may be imposed arise in every criminal case where a conviction is obtained; hence, the application of our statutory sentencing procedures requires uniformity and consistency. Id. The issue raised by the State in this appeal concerns the trial court’s authority to sentence a defendant to probation under the habitual criminal offender statute. We have previously held that “sentencing and the manner in which such punishment provisions can be imposed arise in every criminal case where a conviction is obtained, and the application of these statutory sentencing procedures to convict defendants requires uniformity and consistency.” State v. Stephenson, 340 Ark. 229, 231, 9 S.W.3d 495, 496 (2000) (citing State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993)). Likewise, it is well settled that the State may' appeal the imposition of a void or illegal sentence by the trial court. State v. Hardiman, 353 Ark. 125, 114 S.W.3d 164 (2003) (citing State v. Kinard, 319 Ark. 360, 891 S.W.2d 378 (1995); State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995); State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994)). Accordingly, we have jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. l-2(a)(8) and Ark. R. App. P. — Crim. 3 (2005).
For its sole point on appeal, the State contends that the circuit court illegally sentenced Appellee when it imposed probation despite the fact that she pled guilty as a habitual offender. The habitual offender statute, codified at Ark. Code Ann. § 5-4-501, sets forth the criteria that a defendant must satisfy before an extended term of imprisonment maybe imposed. If the criteria for extending the term for imprisonment are met, section 5-4-501(a)(2) provides express guidelines for sentencing. That part of the statute states
(2) The extended terms of imprisonment for the defendants described in subdivision (a)(1) of this section are as follows:
(A) For a conviction of a Class Y felony, a term of not less than ten (10) years nor more than sixty (60) years, or life;
(B) For a conviction of a Class A felony, a term of not less than six (6) years nor more than fifty (50) years;
(C) For a conviction of a Class B felony, a term of not less than five (5) years nor more than thirty (30) years;
(D) For a conviction of a Class C felony, a term of not less than three (3) years nor more than twenty (20) years;
(E) For a conviction of a Class D felony, a term of not more than twelve (12) years;
(F) For a conviction of an unclassified felony punishable by less than life imprisonment, not more than five (5) years more than the maximum sentence for the unclassified offense; and
(G) For a conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life.
Ark. Code Ann. § 5-4-501(a)(2) (Supp. 2005); see also Ark. Code Ann. § 5-4-502 (Repl. 1997). More importantly, Ark. Code Ann. § 5-4-301 (a) (2) expressly states that the court shall not place a defendant on probation if it is determined that the defendant has been previously convicted of two or more felonies, in accordance with the habitual offender statute. Ark. Code Ann. § 5-4-301 (a)(2) (Supp. 2005).
In Arkansas, sentencing is entirely a matter of statute. See Ark. Code Ann. § 5-4-104(a) (Supp. 2005) (“[n]o defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter”); State v. Hardiman, supra; State v. Stephenson, supra. In stating the applicable general rule, we have consistently held since the enactment of our criminal code that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003); State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Where the law does not authorize the particular sentence pronounced by a trial court, the sentence is unauthorized and illegal, and the case must be reversed and remanded. Taylor v. State, supra; State v. Stephenson, supra. Moreover, we have stated on several occasions that sentencing under the recidivist statute is mandatory, not optional. State v. Murphy, supra; State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993); McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991); Woodson v. State, 302 Ark. 10, 786 S.W.2d 120 (1990); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).
In support of the point of error raised on appeal, the State cites Murphy v. State, supra. In Murphy, the trial court accepted Murphy’s guilty plea to a felony charge as a habitual offender. As in this case, sentencing was postponed until a later date. At the sentencing hearing, the trial court sua sponte dismissed the habitual offender charge and sentenced Murphy without the enhancement of the recidivist statute. The State objected but the court overruled its objection. On appeal, the State argued that the sentence was erroneous because (1) the trial court’s sua sponte dismissal of the habitual offender charge violated the separation of powers and usurped the prosecutor’s constitutional duties and (2) the law governing the minimum sentencing of habitual offenders is mandatory. We agreed and reversed and remanded the case, directing the circuit court to sentence Murphy in accordance with the habitual offender statute. State v. Murphy, supra.
Unlike Murphy, the instant case does not involve a trial court’s sua sponte dismissal of the habitual offender charge. Thus, the only issue to be decided in this case is whether the circuit court had the authority to impose a sentence outside the statutory sentencing range for habitual offenders. According to the above-cited statutes, particularly Ark. Code Ann. § 5-4-301 (a)(2), the answer is clear. The circuit court did not have the authority to sentence Appellee to probation.
Appellee was charged by the State as a habitual offender. She pled guilty to a Class C felony as a habitual offender. According to section 5-4-501, a defendant that is prosecuted and convicted of a Class C felony as a habitual offender is only eligible for a sentencing range of three to twenty years’ imprisonment. Ark. Code Ann. § 5-4-5Ó1 (a)(2)(D). Likewise, section 5-4-301 (a)(2) expressly forbids a circuit court from placing a defendant on probation if the defendant has been convicted of two or more felonies in accordance with the habitual offender statute.
Moreover, the record indicates that Appellee knew about the statute’s sentencing range. The written guilty plea signed by Appellee reflects a “punishment range” of “3-20” years. In addition, at the time of Appellee’s plea in open court, the circuit court expressly reiterated that her offense carried with it a sentenc ing range of three to twenty years’ imprisonment. Thus, because Appellee pled guilty to a Class C felony as a habitual offender, the circuit court was required to sentence her in accordance with sections 5-4-301, -501. We therefore conclude that the circuit court exceeded its statutory authority when it placed Appellee on probation. Such a sentence is illegal on its face. Accordingly, we reverse and remand for the purpose of sentencing Appellee as a habitual offender under Ark. Code Ann. § 5-4-501 (a).
Reversed and Remanded.
Ark. Code Ann. § 5-4-501 (a)(1) states:
A defendant meeting the following criteria may be sentenced to an extended term of imprisonment as set forth in subdivision (a)(2) of this section:
(A) A defendant who is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30,1993, and who has previously been convicted of more than one (1) but fewer than four (4) felonies or who has been found guilty of more than one (1) but fewer than four (4) felonies;
(B) A defendant who is convicted of any felony enumerated in subsection (c) of this section committed after August 31,1997, and who has previously been convicted of more than one (1) but fewer than four (4) felonies not enumerated in subsection (c) of this section or who has been found guilty of more than one (1) but fewer than four (4) felonies not enumerated in subsection (c) of this section; or
(C) A defendant who is convicted of any felony enumerated in subsection (d) of this section committed after August 31,1997, and who has previously been convicted of more than one (1) but fewer than four (4) felonies not enumerated in subsection (d) of this section or who has been found guilty of more than one (1) but fewer than four (4) felonies not enumerated in subsection (d) of this section. | [
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Per Curiam.
Motion to Supplement is granted. Expedited simultaneous briefing on petition for writ of certiorari ordered by noon, Tuesday, November 29, 2005.
Motion to Supplement granted; expedited simultaneous briefing ordered.
Glaze, Corbin, and Imber, JJ., dissent on issue of stay. | [
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Curiam.
Appellant Robert Lee Williams, by and through his attorney, has filed a motion for rule on clerk. His attorney, Cathleen Villee Compton, states in the motion that the record was tendered late due to a mistake on her part.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Ms. Compton has candidly admitted fault. The motion is, therefore, granted'. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted.
Brown, J., not participating. | [
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