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M. MICHAEL KINARD, Judge
| Appellant Marilyn Cook, appeals ‘from the decision of the Arkansas Board of Review (Board), which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) finding that she was disqualified from receiving unemployment benefits. Cook’s disqualification was based on the finding that she was discharged from her last work for misconduct connected with the work on account of dishonesty. On appeal, Cook argues that her actions did not constitute misconduct. We agree.
The employer, the Arkansas Department of Correction (ADC), was represented by Stephanie Glasscock, a payroll administrator, - at the Tribunal hearing. Glasscock testified that Cook was terminated for changing a historical document without-noting the change. Cook worked as an agency controller in the construction division of the ADC for about three years under the supervision of León Starks. In May 2014, Cook was promoted to the posi tion of audit , manager and worked under the supervision of the ADO director. However, Cook also 12continued to work in her former position because her replacement in. the construction division was not hired until November 2014. After this employee’s hiring, Cook trained and assisted him. Cook testified that the agreement with the then-director was that her work in the construction division would remain under the supervision of Starks. Cook took medical leave in'December 2014, and when she returned in Jariuary 2015, a new director, Wendy Kelley, was in place. Cook was told to catch up on her work as audit manager and that she could assist in the construction division in her extra time.
In March 2015, Cook was assisting in providing construction-division documents to 'a legislative auditor; including a' construction-budget status report dated August 14, 2013. This report had been previously provided to the Board of Corrections, but it was later found to contain ah error. The budget for one-, project was listed as $2,000,000 instead of $200,000. Cook testified that this error was corrected in a September 2013 budget status report. Before sending the August -2013 report to the legislative auditor, Starks instructed Cook to correct the error. Cook said that she told Starks that the correction required an explanation of -the change, but Starks was insistent that it be done his way. Cook relented, and the report was sent with the corrected figure.
The auditor noted the discrepancy between the August 2013 document provided by Cook and the same document previously provided to- the Board of Corrections. The Board of Corrections and Kelley were notified. Cook- then provided the original version to the auditor. A review was uri-dertaken by -the compliance division, which “did not reveal any purpose for.modifying the August 14, 2013 Budget Report, other than because of error or 1 ^omission.”
Cook believed that Starks’s way was flawed but not deceitful. She maintained that her intent was to correct a typographical error, not to falsify a document or to deceive. She said that her actions bestowed no benefit on herself or on anyone else. Cook testified that she did not talk to Kelley, about the situation because Cook was acting as agency controller in the construction division, and pursuant to the chain of command and prior practice, Starks, not Cook,' reported to the director. Cook said that Starks' told fter that he Would tell anyone who needed to be told.
Glasscock testified that, as audit manager and as an 'accountant, Cook should have known that it was unethical to make the change without noting it or letting anyone know. Noting Kelley’s termination letter to Cook,. Glasscock testifiéd that at the time of the incident, Cook was no longer assigned to the construction division under Starks’s supervision but reported directly to Kelley. Glasscock noted that Cook tried to persuade Starks to include a notation, and despite knowing Starks’s way was wrong, she still did not inform Kelley. The Board concluded that Cook’s actions were dishonest because she was aware that she was required to note the change with an explanation, and she was aware that she answered to Kelley as audit manager.
The standard of review is well settled. We do not conduct de novo review in appeals from the Board of Review. Rockin J Ranch, LLC v. Director, Department of Workforce Services, 2015 Ark. App. 465, 469 S.W.3d 368. Instead, we review the- evidence and all reasonable inferences deducible therefrom in- the light most favorable to the Board’s findings of fact. Id, |4The Board’s findings of fact are conclusive if supported by substantial evidence, which is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidencé upon which the Board might-have reached a different decision, the scope of judicial review -is limited to a determination of whether the Board could have reasonably reached the decision rendered based on. the- evidence presented. Id.
A claimant is disqualified from receiving unemployment benefits if she is discharged from her last work for misconduct in connection with the work on account of dishonesty. Ark. Code Ann. § 11—10—514(b) (Supp. 2015). Our appellate jurisprudence makes clear that to constitute misconduct, there must be the element of intent. Hubbard v. Director, Department of Workforce Services, 2015 Ark. App. 235, 460 S.W.3d 294. Misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance ás the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. To constitute misconduct, there must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. In unemployment-compensation jurisprudence, dishonesty is defined as “a disposition to lie, cheat or' defraud; untrust-worthiness; lack of integrity.” King v. Director, Employment Security Department, 80 Ark. App. 57, 92 S.W.3d 685 (2002).
It was undisputed that Cook acted at the direction of Starks in making the change to the document and that the only purpose was to correct an error. We hold that the ADC’s position that Cook should have consulted Kelley does not demonstrate that Cook committed Ran act of dishonesty or an intentional violation of employee standards, but rather a good-faith error in judgment. In King, we held that there was no substantial evidence of dishonesty because the claimant had a good-faith belief that his assertion was true and did not make it with the intent to deceive. Here, Glasscock acknowledged that the ADC had not alleged any personal gain by Cook, and there was no evidence of an intent to deceive. Under these circumstances, we cannot say that there is substantial evidence of dishonesty. Accordingly, we reverse the decision of the Board of Review and remand for a determination of benefits.
Reversed and remanded.
Harrison and Hoofman, JJ., agree. | [
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DAVID M. GLOVER, Judge
| Appellant Derrick Morgan was convicted by a Desha County jury of the offenses of theft of property with a value of more than $1000 but less than $5000, a Class D felony, and unauthorized use of another person’s property to' facilitate certain crime's, a Class B felony (unauthorized usé). Hé was placed on one year of probation for the theft conviction’and fíve’ye'árs’ probátión for the unauthorized-use conviction. On appeal, Morgan argues that there was insufficient evidence to convict him of the offense of unauthorized use. We affirm.
Morgan worked in. the warehouse of Warner Logistics in Dumas. On December 19, 2013, Morgan’s job was to scan and load twenty-two pallets of dog food onto a truck to be delivered to Kroger in Memphis, Tennessee. Instead, thirty pallets of dog food were loaded-onto the=truek. The eight additional pallets contained 259 bags of dog food, with' a-wholesale value of $6,443.92. According to truck owner-operator James Williams, Morgan got his load |2number, went into the warehouse, and then came back out and informed Williams that they had added another stop on Williams’s route. Williams acknowledged this was not unusual, so he agreed to make the additional stop. He testified' Morgan instructed him to follow him; that he followed d black Tahoe driven by Marcello. Binns, in which Morgan was á passenger, to a Pine Bluff neighborhood; and that the eight pallets of dog food were unloadecj. by people at a house and placed in the house’s carport and in Binns’s Tahoe. According to Williams, the police were called due to a tractor-trailer rig parked in the neighborhood; he was arrested at that time, but Morgan had left the area by then, Williams testified he did not at any time consent to Morgan using his truck to transport stolen dog food, and he did not know that was what he was doing. The warehouse supervisor at Warner Logistics testified that Morgan never returned to work after December 19.
In his testimony, Morgan did not admit he had loaded thirty pallets instead of twenty-two pallets, even though a Dumas police officer testified that Morgan had told him he had loaded the truck. Morgan claimed Williams had told him that he had another pickup to make and that he had been asked by Williams to make room for the extra load. Morgan also denied he was in Pine Bluff on December 19.
Morgan first argues there is insufficient evidence to convict him of the of fense of unauthorized use because without the testimony of James Williams, who was deemed to .be an |saceomplice in this case, there was no other, evidence tending to connect him to the unauthorized use of another person’s property, and, pursuant to Arkansas Code Annotated section 16-89-111(e)(1)(A) (Supp. 2015), there .cannot be a conviction in a felony case upon the testimony of an accomplice unless corroborated by other evidence that tends to connect the defendant with the commission of the offense. This argument was not preserved for appeal.
A directed-verdict motion is a challenge to the sufficiency of the" evidence and requires the movant to apprise the circuit court of the specific bases on which the motion is made. Jones v. State, 2015 Ark. App. 495, 2015 WL 5603293. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal but rather are bound by the scope and nature of the objections and arguments made at trial. Id. Here, while Morgan specifically made the accomplice argument with regard to the sufficiency of the evidence for theft of property, he did not make the accomplice argument for the unauthorized-use offense. Specifically, with respect to the unauthorized-use offense, Morgan’s counsel argued in his motion for directed verdict that there was no proof Morgan knew that the truck was being used in an unauthorized fnanner, as it did in fact belong to the truck driver, Williams, and there was- no evidence that Morgan received any pecuniary gain or value from the theft of the dog food; He made the same arguments when he renewed his directed-verdict motion for the unauthorized-use offense at the close of all the evidence. Because Morgan did not make an accomplice argument to the trial court with respect to the unauthorized-use offense and now |4raises it for the first time on appeal, his argument is not preserved for appeal.
Morgan also argues the legislature intended for Arkansas Code Annotated section 5-74-105 to be applied only to gang activity, as the statute is found in the subchapter entitled, “Arkansas Criminal Gang, Organization, or Enterprise Act,” and due to the intent expressed by the legislature in Arkansas Code Annotated section 5-74-102 regarding the increase in crime committed by criminal gangs, organizations, and enterprises. Morgan contends the State failed to sufficiently prove that Morgan’s unauthorized use of another person’s property was gang related. This argument was rejected in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997) (overruled on other grounds in Carter v. State, 365 Ark. 224, 227 S.W.3d 895 (2006)), and McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997), In both cases, our supreme court held the statute in question, while .a part of the Arkansas Criminal Gang, Organization, or Enterprise Act codified at Arkansas Code Annotated §§ 5-74-101 to 108, did not require an element of gang activity, and it would be hesitant to interpret a legislative act in a manner contrary to its express language. Similarly, here, section 5-74-105 does not require an element of gang activity, and neither will we interpret a legislative act in a manner contrary to its express language.
Affirmed.
Virden and Kinard, JJ., agree.
. Morgan does not appeal his conviction for theft of property.
. 2 Arkansas Code Annotated section 5-742-105(a)(l) (Repl. 2005) provides, “A person commits the offense of unauthorized use of another person’s property to facilitate a crime if he or she knowingly uses the property of another person to facilitate in any way the violation of a predicate criminal offense without the owner’s knowledge.’'' “Predicate . criminal offense” is defined as “any violation of Arkansas law that'is a crime of violence or a crime of pecuniary gain.” Ark. Code Ann. § 5-74-103(4) (Repl. 2005). “Crime of pecuniary gain”' is defined as “any violation of Arkansas law that results, or was intended to result, in the defendant receiving income, benefit, property, money, or anything of value.” Ark. Code Ann. § 5-74-10s(l). | [
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RAYMOND R. ABRAMSON, Judge
11 Cynthia Marie Glennon appeals from the revocation of her probationary sentence after the State alleged that Glennon had committed a new offense of a domestic battery class d felony. She challenges the sufficiency of the evidence' to support the trial court’s findings that she committed the battery as alleged and argues that there was no proof that her failure to pay was willful. We affirm.
• On July 18, 2014, in Crawford County Circuit Court, Glennon pled guilty to the offense of domestic battery in the third degree second offense; a Class D felony. She was sentenced to six years! probation and was ordered to abide by the rules and regulations set out by that office, which included paying a $35 monthly probation fee. She was also ordered to pay a $250 DNA fee, payable at a rate of $65 per month. The court ordered Glennon to complete anger-management and alcohol freatment.
|2On March 3, 2015, the State petitioned to revoke Glennon’s probation, alleging that she had committed the new offense of domestic battery and had'failed to keep up with her probation '-payments. After a hearing on the revocation petition, the trial court revoked Glennon’s probation and sentenced her to thirty days in the county jail, 72 months’ probation, and ordered her to pay her remaining balance of $130. This timely appeal follows.
A trial court may revoke a defendant’s probation at any time prior to the expiration of the period of probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2015). This court will not reverse the circuit court’s decision to revoke unless it is clearly against the preponderance of the evidence. Owens v. State, 2009 Ark. App. 876, at ¶6, 372 S.W.3d 415, 419. Furthermore, because the State’s burden of proof is less in a revocation hearing than in a criminal trial, evidence that might be insufficient to sustain a criminal conviction may nevertheless be sufficient to sustain a revocation. Foster v. State, 104 Ark. App. 108, 289 S.W.3d 476 (2008). Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial court’s superior position. Rhoades v. State, 2010 Ark. App. 730, at ¶3, 379 S.W.3d 659, 661. The State need only show that the appellant committed one violation in order to sustain a revocation. Id.
Pursuant to Arkansas- Code Annotated section 5-26-305(a)(£) & (2), a person commits domestic battering in the third degree if it is With the purpose of causing physical injury to a family or [¡¡household member or if the person recklessly causes physical injury to a family or household member. Second-offense status, making the crime a Class D felony, is reserved for defendants who have been previously convicted of third-degree .domestic battering at least once within the previous five years. Ark. Code Ann. § 5-26-305(b)(2)(B) (Supp. 2015).
Where the alleged violation involves the failure to pay ordered amounts, and the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable exeuse for the failure to pay. Truitt v. State, 2015 Ark. App. 276, 2015 WL 1954067. It is the probationer’s obligation to justify his or her failure to pay, and this shifting 'of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. The State, however, shoulders the ultimate burden of proving that the probationer’s failure to pay was inexcusable. Id.
At the April 15, 2015 revocation hearing, Robert Thomas testified that on February 19, 2015, his then live-in girlfriend, Glen-non, assaulted him. He reported the incident to the Van Burén Police, and photographs of the injuries were admitted into evidence without objection. He described the injuries to his arms, hands, neck, and cheek that she had caused. Thomas testified that he “vaguely” remembered the reason Glennon attacked him, and that it “mighta’ been about” his desire to go to sleep.
Lisa Whetstine, the restitution coordinator, testified that Glennon had not paid her probation fee as ordered. Glennon made only five payments totaling $160. A copy of the circuit court ledger was introduced into evidence with no objection. It reflected two payments made on September 11, 2014 ($45 and $20); one on November 6, 2014 ($45); one on January 2,-.2015 ($40); and one on February 19, 2015 ($10).
I ¿Glennon testified in her own defense. She stated that her two children have disabilities, and she lives off of the child-support and disability checks she receives on behalf of her children. Glennon alleged that Thomas was a drug addict and had crawled into her apartment window while drunk and had threatened to kill her. She said she felt threatened, so she called 911. Glennon admitted that she had failed to make all her'payments, but testified that she had done the best she could while remaining unemployed since April 2014 and living on a very limited income. ■
Following all the testimony, the circuit court revoked Glennon’s probation. The court explicitly based its ruling on its'finding that Thomas’s testimony was credible, and Glennon’s lacked credibility. The court also noted that based upon the exhibits, there appeared to be a severe bite mark and other injuries to Thomas.
Glennon did not contest below and does not contest now that Thomas, her ex-boyfriend, was a “household member” within the meaning of the statute and that she had previously been convicted of third-degree domestic battering at least once in the previous five years. Thomas’s injuries met the definition of “bruising, swelling, or a visible mark associated with physical trauma” as defined by statute. See Ark. Code Ann. § 5-1-102(14)(C) (Repl. 2013). The trial court’s finding,that Thomas’s testimony that Glennon attacked him was sufficient to show that she caused the injuries recklessly or purposefully is not clearly against the preponderance of the evidence.
Glennon’s argument that Thomas was an incompetent witness fails. ' That he could not remember the exact nature of the dispute does not render him an incompetent witness. As | Bthe State correctly contends, the argument substitutes Glennon’s assessment of Thomas’s credibility for the circuit court’s, which is contrary, to the standard of review. Rhoades, supra. Here, the trial court’s findings that Glennon -committed domestic battery are not clearly against the preponderance of the evidence.
The State’s evidence of nonpayment included Lisa ■'Whetstine’s testimony and the admission of Glennon’s payment ledger. The circuit court, as a trier of fact, was entitled to assess Glennon’s explanations for her failure to pay and conclude that her nonpayment was not excusable; We defer to the trial court here, and its findings are not clearly against the preponderance of the evidence. Thus, we affirm the revocation of Glennon’s probation.
Affirmed.
Gladwin, C.J., and Brown, J., agree. | [
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KENNETH S. HIXSON, Judge
hln this environmental-láw case, the Arkansas Department of Environmental •Quality (“ADEQ”) issued a permit allowing appellee Big River Steel, LLC (“BRS”) to build and operate a new steel mill in Mississippi County, Akansas. Appellants Nucor Steel-Arkansas and Nucor-Yamato Steel Company (collectively, “Nucor”), who also own steel mills in Mississippi County, opposed the permit and appealed ADEQ’s decision to the Akansas Pollution Control and Ecology Commission (“PC&E”). PC&E affirmed the permit, and Nucor sought judicial review in the Mississippi County Circuit Court. That court, upon a motion by BRS, transferred the case to the Akansas Court of Appeals, pursuant to Arkansas 12Code Annotated section 8-4-223(d) (Supp. 2015). The operative decir sion before us is the administrative ruling of PG&E, and we affirm PC&E’s decision.
I. Background
The BRS permit was issued under the terms of the federal Clean Air Act, which ensures that economic growth will occur in a manner consistent with the preservation of clean air. See 42 U.S.C. § 7401 et seq. (2014). The Act particularly addresses the pollution dangers posed by “major emitting facilities,” such as the BRS steel mill in this case. These types of facilities are subject to a pre-construction review and may not be built unless, among other things, a permit has been issued containing emission limitations; the permit has undergone a regulatory evaluation; the facility demonstrates that it will employ the best available pollution-control technology; and the facility demonstrates that its emissions will not cause or contribute to excessive air pollution. 42 U.S.C. § 7475 (2014). The preconstruction review is referred to as Prevention of Significant Deterioration (PSD), meaning that it ■ seeks to prevent significant deterioration of the air quality around the proposed construction site.
Under the Clean Air Act and its attendant regulations, the responsibility for the PSD process is shared by state and federal governments. State regulators are charged with conducting the necessary review of PSD applications and issuing the construction and operating permits. In Arkansas, the permitting authority is ADEQ. Ark.Code Ann. ■ § 8-4-203(a) (Supp. 2015). Federal regulators are responsible for establishing air-quality standards, which set limits on the amount of pollution that will be tolerated in a given region. Toward that end, the Environmental Protection Agency (“EPA”) has instituted National Ambient RAir Quality Standards (NAAQS) for certain “criteria” pollutants, which are the most common air pollutants found in the United States. See 42 .U.S.C. § 7409- (2014); 40 C.F.R. Part 50. Included among the criteria pollutants are the small, fine smoke particles, designated as PM2.6 (particulate matter with a diameter of -2.5 microns or less). As of March 2013, the EPA’s primary annual air-quality standard for PM2.5 was twelve micrograms per cubic meter, of air (12 M-g/m3).
In January 2013, BRS filed a PSD application with ADEQ to construct and operate a new steel mill near Osceola in Mississippi County. The application stated that the mill would produce up to 3.4 million short, tons per year of rolled steel products and would employ two electric arc furnaces and • various- other components, some of which would be natural-gas fired. Subsequent to its initial application, BRS submitted revised applications in March and June 2013 and asked that its application be processed in “an' accelerated timely manner.”
As required by law, BRS’s application included an air-quality analysis, ■ the purpose of which was to demonstrate that the new mill would-not have an adverse impact on air quality in the region. Because the mill had .not yet been constructed, BRS could only estimate the types and concentrations of pollutants that would be discharged once the mil) was operational. To properly estimate the concentration of air pollutants, BRS employed a technique referred to as air-dispersion modeling. Modeling is a complex process that, among other things, uses computer inputs to predict the future emissions of a planned industrial facility. The modeling results, when added to the existing emissions from other nearby plants, yield the concentration of pollutants, that will be released into the region’s ambient 14air by industrial means. An air-quality analysis must also account for the “background” pollution that exists in the area due to agricultural, vehicular, or other activities. Background pollution is ordinarily measured by" a monitor in place at the proposed construction site. However, no such monitor existed in Mississippi County. BRS therefore utilized a “representative” background monitor in Dyersburg, Tennessee, approximately-forty miles to the northeast.
BRS’s modeling, along with ADEQ’s confirmatory modeling, predicted that the new mill- and its neighboring facilities would emit a PM2.6 concentration of approximately 2.56 irg/m3. This figure, when combined with a reading of 9.44 p,g/m3 from the Dyersburg background monitor, demonstrated an -exceedance or near-ex-ceedance of the 12 \xgjm3 federal ceiling for PM2.6. BRS reviewed its data and determined that it could properly reduce some of the inputs it had utilized in its initial modeling run. BRS then repeated the modeling and arrived at a PM2b level of 11.91 pg/m3 — just below the 12 pg/m3 standard. This final air-quality analysis was submitted to ADEQ on June 24, 2015,
, The next day, ADEQ issued a Draft Permit that, -if finalized, would allow BRS to construct and operate the new mill. The lengthy and data-rich Draft Permit included BRS’s most recent air-quality analysis results for PM2.b. The Draft Permit also required BRS to apply specific pollution-control technology to its emissions from all plant “sources,” such as [ ¡¡smokestacks and vents; set forth exact emission limits for each pollutant discharged by each source; and imposed requirements for post-construction testing and monitoring.
The issuance of the Draft Permit triggered a thirty-day public-comment period, during which BRS, the EPA, and any interested third party could present ADEQ with written comments about the draft. Ark.Code Ann. § 8-4-203(e) (Supp. 2015). Appellant Nucor, who had actively followed BRS’s application, submitted over forty comments, most objecting to the technical aspects of BRS’s modeling and to a perceived bias in ADEQ’s evaluation of BRS’s application. After reviewing the public comments, ADEQ modified the Draft Permit in some respects, then issued a Final Permit on. September 18, 2013. Nucor appealed ADEQ’s decision to PC&E pursuant to Arkansas Code Annotated section 8-4-205(b)(l) (Supp. 2015).
II. Appeal to PC&E
Nucor’s petition to PC&E cited approximately thirty errors that allegedly occurred during the permitting process. Upon receiving the petition, PC&E appointed an administrative hearing ■ officer (AHO) to review Nucor’s allegations and conduct the necessary proceedings. See Ark.Code Ann. § 8-1-204 (Supp. 2015) (allowing PC&E to employ an administrative hearing officer). Preliminarily, the AHO dismissed several of Nucor’s allegations due to procedural deficiencies, such as the failure to raise them in the public comments. See Ark.Code Ann. § 8-4-205(b)(2) (Supp, 2015). The remaining issues proceeded to an adjudicatory hearing.
In anticipation -of the hearing, Nucor submitted pre-filed. testimony from its manager of environmental affairs, Jeffrey Braun, and from three expert witnesses: Yousheng Zeng; | (¡George Schewe; and Kenneth Weiss. In opposition to. Nucor, BRS submitted pre-filed testimony from its consultant, Steven Frey, and from its expert witness, Gale Hoffnagle. ADEQ provided pre-filed testimony from its permit writer/engineer, Shawn Hutchings, and its Air Permit Branch Manager, Thomas Rheaume. In addition to giving pre-filed testimony, these witnesses, along with ADEQ Director Teresa Marks, testified in person at the adjudicatory hearing, which was held over a four-day period in February 2014. The substance of the witnesses’ testimony will be discussed later in this opinion, in connection with the arguments on appeal. But, essentially, Nucor’s experts testified, inter alia, that BRS was not justified in using Dyersburg, Tennessee as a representative monitor for background PM2.s; that ADEQ’s review of BRS’s application was superficial and unsatisfactory; that BRS and ADEQ ignored certain inputs or used incorrect inputs in the modeling process; and that proper modeling would have shown an exceedance of the air-quality standards for PM2,5. BRS and ADEQ witnesses, by contrast, testified that Dyersburg, Tennessee was a proper representative site for background PM2.6 and that all legal requirements for modeling and ADEQ review were otherwise met.
Following the hearing, the AHO issued a recommended decision on March 20, 2014. See Ark.Code Ann. § 8-l-203(c)(2) (Supp. 2015) (requiring the AHO to administer the hearing and, after due deliberation, submit a recommended decision to the Commission). The AHO’s recommended decision covered sixty-nine pages, discussed the evidence and the parties’ arguments at length, and counseled affir-mance of the BRS permit. Nucor responded with a request for oral argument before PC&E’s Commissioners, challenging virtually every aspect of the AHO’s recommended decision. After a brief oral argument on 17April 25, 2014, the Commissioners voted to adopt the AHO’s decision. That same day, PC&E issued a minute order affirming the BRS permit and adopting and affirming the AHO’s recommended decision in full. Nucor then appealed to the Mississippi County Circuit Court, pursuant to Arkansas Code Annotated sections 8-4-222 and -223(a) (Supp. 2015).
III. Judicial Review
Once the ease arrived in circuit court, BRS filed a motion to transfer the appeal to the Arkansas Court of Appeals, pursuant to the recently enacted Arkansas Code Annotated section 8-4-223(d). This statute provides that, upon the filing of a motion by the owner of the business involved in the permit process, an appeal to circuit court “shall be transferred to the Arkansas Court of Appeals.” The Mississippi County Circuit Court granted the transfer, bringing the current appeal before this court. We begin by addressing Nucor’s arguments concerning our standard of review.
IV. Standard of Review
Nucor’s first argument is that our court should review PC&E’s decision “sitting essentially as a circuit court.” This argument stems from the above-mentioned section 8-4-223(d), which allows a “bypass” of the circuit court in favor of a direct transfer to the Arkansas Court of Appeals. We do not interpret the statute as requiring our court to act as a circuit court.
Section 8-4-223(d) was enacted as part of Act 1021 of 2013. The Act’s preamble states that its purpose was, in part, to allow a “direct appeal” to the Arkansas Court of Appeals in order to “streamline” the review of PC&E rulings. When interpreting a ^^legislative enactment, our courts have looked to the preamble of an act to determine its purpose and intent. See Okla Homer Smith Firm. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983); Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark. App. 25, 940 S.W.2d 889 (1997). In light of the preamble to Act 1021, the only reasonable interpretation of section 8^ — 223(d) is that it was intended simply to expedite the process of bringing a PC&E ruling forward for appellate review. We discern no intent to divest the appellate court of its ordinary function or to have it assume the posture of a circuit court.
Nucor points out that, had the appeal from PC&E’s ruling remained in circuit court, that court could have allowed Nucor to present additional testimony. See Ark. Code Ann. § 8-4-227(c)(l)(B) (Supp. 2015). Accordingly, Nucor has asked this court to preserve that opportunity and to allow discovery for the purpose of developing additional evidence. This" same request was presented to our court in several motions filed prior to the submission of the case. At that time, we rejected Nucor’s request and denied its motion for reconsideration We stand by our rulings on Nucor’s motions. .
' It is correct that Arkansas Code Annotated section 8-4-227(c)(l)(B) grants authority to the circuit court to hear additional evidence. See Act 1021 of 2013, § 7. However, that statute does not grant the same authority to the appellate court. ‘ As discussed above, we will review-this matter as an appellate court, and not as a circuit court. So, while we understand | Nucor’s concern over losing the opportunity to present additional evidence, we decline to revisit this issue.
Next, Nucor argues that our court should review PC&E’s ruling de novo. We decline to do so. It is not our role in an administrative appeal to conduct a de novo review of the record. See Ark. Bev. Retailers Ass’n v. Langley, 2009 Ark. 187, 305 S.W.3d 427. Rather, we review administrative appeals with great deference to the agency’s expertise, based on our recognition that such agencies are better equipped by specialization, insight through experience, and more flexible procedures to determine and analyze legal issues affecting them. See Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecology Comm’n, 354 Ark. 563, 127 S.W.3d 509 (2003). Agency decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id. On appeal, we give the evidence its strongest probative force in favor of the agency’s findings. Id. Even where issues of law are concerned, we often accord deference to the agency’s ruling, particularly when reviewing the agency’s interpretation of statutes or its own rules and regulations. See Lamar Outdoor Advert. v. Ark. Hwy. & Transp. Dep’t, 86 Ark. App. 279, 184 S.W.3d 461 (2004).
Given the above authorities, a de novo review is not appropriate in this appeal from an administrative agency. Furthermore, a de novo review would be inconsistent with Arkansas Code Annotated section 8-4-229 (Repl. 2011), which provides that, in any appeal involving a PC&E order, -the agency’s action shall be “prima facie evidence reasonable and invalid.” The same statute provides that all findings of fact by PC&E shall be prima-facie evidence of the matters stated therein and that, the burden of proving the contrary shall be upon the appellant. This statute unquestionably requires a deferential review of PC&E rulings, which is inconsistent with a de novo review.
Nucor nevertheless maintains that the separation-of-powers doctrine requires us to conduct a de novo review because PC&E’s ruling constituted a quasi-judicial act. See City of Ft. Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008) (holding that, while a court may not conduct a de novo review when an administrative agency has acted in a legislative or executive capacity, a court may conduct a de novo review of an agency’s quasi-judicial ruling). Here, PC&E’s ruling on the issuance of a regulatory permit was an exercise of executive function, hinging on executive discretion, and was not a quasi-judicial ruling. See Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993); Ark. Comm’n Pollution Control & Ecology v. Land Developer's, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984). Thus, a de novo review would be improper. McCutchen, supra. The traditional, limited standard of review utilized in administrative appeals therefore applies. See La. v. Joint Pipeline Grp., 2010 Ark. 374, 373 S.W.3d 292; Tri-County Solid Waste Dist. v. Ark. Pollution Control & Ecology Comm’n, 365 Ark. 368, 230 S.W.3d 545 (2006).
V. Procedural Matters During PC&E Review
Nucor contends next that PC&E committed several procedural errors in its-review of the ADEQ permit decision. First, Nucor argues that PC&E did not conduct a de novo review as required by Arkansas Code- Annotated section 8-1-203(c)(3)(A)(i) & (ii) (Supp. 2015). We see no error. As allowed by law, PC&E appointed the AHO to conduct a review |n of ADEQ’s permit decision. The AHO duly received testimonial and documentary evidence and carried out a de novo review based on that proof.- In doing so,' '-the AHO acted as PC&E’s agent. -Ark.Code Ann. § 8-l-203(c)(l) - (Supp. 2015), and therefore met the requirements of the law on behalf of PC&E.
Nucor insists, however, that PC&E’s minute order, which adopted the AHO’s recommended decision, should have set forth specific findings of fact. No statute requires this. Moreover, Nucor’s analogy to Workers’ Compensation law on this point is not well founded. The Workers’ Compensation Commission may adopt its ALJ’s findings and conclusions, thereby making those findings and conclusions its own. See Curt Bean Transp., Inc. v. Hill, 2009 Ark. App. 760, 348 S.W.3d 56.
Taking • another approach, Nucor argues that PC&E’s Commissioners could not possibly have familiarized themselves with the AHO’s recommended decision and his voluminous record because the PC&E minute order was issued only eight days after closing briefs were filed by the parties. It appears to us that the Commissioners had more than eight days in which to assess and understand .the materials in the case — PC&E had earlier received the AHO’s detailed decision and Nucor’s re: quest for oral argument, which was over 100 pages in length, and meticulously explained Nucor’s arguments for, reversal of the permit. Regardless, we decline to speculate on the length of time required for the Commissioners to render their decision. ...
Next, Nucor argués that the AHO imposed an erroneous burden of proof during the adjudicatory hearing. The AHO correctly stated that Nucor had the burden of proving by a preponderance of the evidence that BRS’s permit did not meet the requirements of li?the law. See Ark. PC&E Reg. 8.616(B). And, on appeal, Nu-cor acknowledges that it had the burden of proving a deficiency had occurred in the Final Permit or in the permitting process. However, ■ Nucor contends that the AHO erred in requiring it to prove not only that a deficiency occurred but that the deficiency was so material that it would have caused an exceedance of air-quality standards.
We note at the outset that Nucor does not discuss any specific instances in which the AHO imposed an enhanced burden of .proof. Moreover, Nucor cites no authority and makes no convincing argument for the proposition that PC&E lacks the authority to determine whether an error is so immaterial that reversal is not required. It is Nucor’s burden to demonstrate reversible error, Stevens v. SEECO, Inc., 2015 Ark. App. 322, 2015 WL 2437898, and we will not develop an appellant’s argument on appeal. Orintas v. Point Lookout Prop. Owners Ass’n, 2015 Ark. App. 648, 2015 WL 7009115. We therefore affirm on this point.
Nucor also claims that the AHO rendered his decision based on an “improper separation” of the issues. ' According to Nucor, the AHO ruled that certain, individual deficiencies in the permit process had a negligible effect on air-quality standards but failed to consider the cumulative impact of all deficiencies. While the AHO did, in some instances, cite the de minimis effect of an alleged deficiency, it was generally done as an alternative reason for rejecting Nucor’s arguments. We therefore see no reversible error. Moreover, as will be seen in our upcoming discussion of the issues, only one point will be affirmed based on the negligible effect of any possible error.
Lastly, we address Nucor’s argument that the AHO improperly dismissed some of the paragraphs in its petition for review on procedural grounds. ■ The AHO found that some |1sof Nucor’s allegations were barred by not having been raised in the public comments. See Ark.Code Ann. § 8-4-205(b)(2) (providing that a third party cannot raise an issue in a PC&E hearing if the issue was not first raised in the public comments, unless he can show good cause why he could not, with reasonable diligence, have discovered and presented the issue during the comment period). Others were dismissed for being too general in nature, see Ark.Code Ann. § 8-4~205(b)(3) (providing that a request for a PC&E hearing must include a complete and detailed statement identifying the legal and factual objections to the permit), or for incorporating allegations from other sources. See • Ark. PC&E Reg. 8.603(c)(1)(c).
On appeal, Nucor argues that the procedural dismissals were based on a hyper-technical application of the above-mentioned statutes and regulations. However, Nucor’s brief does little more than set forth a list of paragraph numbers that were dismissed; it provides no explanation as to why the dismissals warrant reversal. As stated above, it is Nucor’s burden to demonstrate reversible error, Stevens, supra, and we will not develop an appellant’s argument on appeal. Orintas, supra.
Nucor also contends that the AHO improperly excluded certain witness testimony as it pertained to the dismissed paragraphs. However, Nucor does not proffer the substance of the testimony or explain how it was prejudiced by the testimony’s exclusion. See Turner v. N.W. Ark. Neurosurgery Clinic, 84 Ark. App. 93, 133 S.W.3d 417 (2003) (holding that we will not reverse the exclusion of evidence in the absence of a demonstration of preju dice). Consequently, we affirm the dismissals and the exclusion of evidence.
|UVI. Alleged Misrepresentation
During the permit-application process, BRS provided ADEQ with certain “emission factors,” which estimated the quantity of a particular pollutant that would be emitted from each particular emission source. For example, with regard to emissions from the plant’s natural-gas-fired equipment, BRS submitted a PM2.5 emission factor of .00052 pounds per one million BTUs (.00052 lb./MMBTU). According to BRS consultant Steven Frey, BRS did not submit any emission factor to ADEQ unless the manufacturer of the natural-gas-fired equipment — SMS Siemag (SMS) — confirmed that the factor could be achieved. ADEQ, in turn, relied on BRS’s representation that the emission factors were achievable. Consequently, ADEQ accepted the factors and used them in the Draft Permit as the PM2i5 emission limits for the steel mill’s natural-gas-fired sources.
After the Draft Permit was issued, and during the thirty-day public-comment period, SMS sent emails to BRS stating that it was “unknown if such low [emission] values can be achieved at all by the affected units,” and that “we cannot guarantee that the required PM figures can be achieved.” BRS did not notify ADEQ that SMS had expressed doubts about the aehievability of the emission limits.
When the Final Permit was issued, Nu-cor appealed to PC&E. The parties then conducted discovery, and Nucor obtained the SMS emails as part of over 90,000 pages provided by BRS. During the adjudicatory hearing, Nucor admitted the emails into evidence through BRS’s expert Gale Hoffnagle. Mr. Hoffnagle said he had never seen the emails but that it would be important for regulators to know the aehievability of emission | ^factors. He also testified that he believed BRS’s stated emission limits could be met and that, at some point after the emails were sent, the engineers must have confirmed achievability.
Following the hearing, Nucor asked PC&E to make a finding that BRS’s permit should be revoked based on BRS’s failure to disclose SMS’s concerns about the emission limits. The AHO declined to do so, ruling that “even if a misrepresentation occurred in this case” PC&E was not authorized to revoke BRS’s permit. As authority for this ruling, the AHO cited Arkansas Code Annotated section 8-4-204 (Repl. 2011), which provides that ADEQ has the power to revoke, modify, or suspend a permit on the ground of misrepresentation. (Emphasis added.) Nucor urged PC&E’s Commissioners to reject the AHO’s ruling, arguing that the AHO had abdicated his duty to revoke the permit. PC&E instead affirmed.
On appeal to this court, Nucor seeks reversal of PC&E’s decision on the ground that BRS concealed material information from ADEQ during the application process and from the public during the comment period. However, PC&E made no finding as to whether a misrepresentation occurred. It ruled only that it lacked the legal authority to revoke BRS’s permit.
A finding or conclusion by a lower tribunal, if not attacked on appeal, must stand as a basis for affirmance. See gen erally Sheppard v. Ark Alcoholic Bev. Control Bd., 2014 Ark. App. 604, 447 S.W.2d 614, 447 S.W.3d 614; Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). In its 11fiopening brief, Nucor addresses the alleged misrepresentation but fails to challenge, the AHO’s finding that PC&E was not authorized to revoke BRS’s permit. Nucor’s opening brief contains no argument that PC&E erred in finding that it lacked authority to revoke the permit. The only sentence in Nucor’s opening brief that might be interpreted as raising this issue states as. follows:
It was also an abuse of discretion for PC&E not to initiate its own investigation or to remand the matter to ADEQ to determine precisely who knew what and when about this matter and to take such further action as is required by law upon determining the full extent of .the concealment and cover-up.
This sentence appears at the end of Nu-cor’s substantive argument on the misrepresentation issue and is simply a concluso-ry statement on its position that there was misrepresentation in the permitting process. It does not refer to, or in any way challenge, 'the AHO’s lack-of-authority finding., At oral argument, Nucor’s counsel was asked to point out where in its opening brief Nucor argued that the AHO’s lack-of-authority finding was error. He responded by stating that he would provide that information to the court after the arguments, and he filed a letter to the court later that day. But counsel misapprehends the iss.ue, demonstrating only that Nucor preserved a separate .argument regarding the standard of review.
Thus, Nucor failed to attack the only finding the AHO made on the issue, i.e., that it lacked authority to revoke the permit. Consequently, we affirm this point without reaching the underlying misrepresentation allegations. Sheppard, supra; Camp, supra. Moreover, an appellant must cite authority and demonstrate error by making a convincing argument as to why the tribunal erred and why reversal is required. See Orintas, supra; Parker v. Parker, 97 Ark. App. 298, 248 S.W.3d 523 (2007). Because Nucor failed to make any argument for 117reversal as to the AHO’s lack-of-authority finding, it clearly has not carried its burden of presenting convincing argument and authority supporting its position. We therefore affirm on this point.
VII. Air-Quality Analysis
We now turn to Nucor’s many arguments pertaining to the air-quality analysis and the modéling that BRS performed in connection with its PSD application. We first address Nucor’s claim that BRS’s analysis incorrectly employed Significant Impact Levels (SILs).
SILs are screening methods adopted by the EPA in an effort to exempt an applicant from conducting a full analysis of certain pollutants when the predicted levels of those pollutants are below certain concentrations. In January 2013, while BRS’s application was pending, a federal circuit court vacated some portions of the EPA’s SIL regulations. See Sieira Club v. Inv. Prot. Agency, 705 F.3d 458 (D.C.Cir.2013). Nucor contends that, in light of the Sierra Club holding, BRS incorrectly employed SILs in its air-quality analysis (although PM2.5 did receive a full analysis).
The AHO dismissed this argument on the ground that it was procedurally barred by not having been raised in the public comments as required by Arkansas Code Annotated section 8-4-205(b)(2). We' affirm that ruling. Nucor’s Comment 30, on which it relies, challenged BRS’s usage and placement of receptors in its significance modeling. However, the comment does not raise the issue that the SILs have been vacated and are no longer applicable.
[18Nucor also argues that BRS’s air-quality analysis was flawed because it did not consider “secondary” PM2,B formation. By way of explanation, PM2iB may be, emitted directly from a mill’s emission sources, or it may develop secondarily in the atmosphere through chemical reaction of certain precursors, such as nitrogen oxides and sulfur. dioxide, which are also emitted from the mill. The AHO ruled that BRS had no legal obligation to account for secondary PM2.B in its air-quality modeling.
Since the onset of its regulation of PM2 6 in 1997, the EPA has struggled with the issue of secondary formation. According to Nucor, a 2008 EPA rule required a PSD applicant to model secondary formation, which would naturally lead to an increase in PM2.6 concentration. However, the requirements of the 2008 rule are not clear, and BRS expert Gale Hoffnagle testified that there was no legal authority that required such modeling. Indeed, subsequent EPA documents indicate that unresolved issues have remained as to whether secondary formation must be modeled and, if so, by what method. In March 2013, the EPA issued a draft guidance memorandum in which it noted that its preferred air-quality model, ÁERMOD, did not account for secondary formation. The draft therefore included recommended approaches for assessing the impact of secondary formation. However, an accompanying letter stated that the draft was a statement of preliminary recommendations; that it was not yet considered final guidance; and that it contained no binding, enforceable requirements.
At the adjudicatory hearing, Nucor’s experts testified that modeling of secondary PM2.6 was required and that ADEQ should have followed the EPA’s draft guidance and insisted on such modeling before issuing the BRS permit. However, .ADEQ Director Teresa 11sMarks testified that ADEQ considered the EPA guidance to be nonbinding. Still, ADEQ engineers were concerned enough to email the EPA and ask how to approach the issue of secondary formation. The EPA did not respond. Later, after the- Draft Permit was issued, the EPA made thirteen comments -regarding changes that should be made in the permit. None involved secondary formation of PM2.6.
Based on the foregoing, and giving due regard to the administrative agency’s expertise, we see no abuse of discretion or error of law on this point. It is unclear whether any authority required the modeling of secondary PM2.B, and we will not reverse an agency’s interpretation of statutes and regulations unless the interpretation is clearly, wrong. Lamar Outdoor Advert., supra. Further, there was substantial evidence that ADEQ was not required to follow the EPA guidance on an issue, much less draft guidance. We therefore reject Nucor’s argument.
Next, Nucor challenges BRS’s decision to usé Dyersburg, Tennessee, as a representative' location for monitoring background PM2.B. The' Clean Air Act generally requires pre-construction air-quality monitoring for a period of one year preceding the permit application. 42 U.S.C. § 7475(e)(2); 40 C.F.R. 52.21(m)(l)(iv).' However, if there aré no monitors located in the vicinity of the proposed construction that can be used to obtain the necessary background concentrations, a regional site may be used. 40 C.F.R. Part 51, Appx. W at'8.2.2(c). A regional site -is-one that is located away from the area of interest but is impacted by similar natural and distant man-made sources. Id.
Here, Mississippi County had no monitor to measure background PM2,6. BRS therefore used the monitor at .Dyersburg, and ADEQ accepted Dyersburg as a representative | ^location. Nucor’s experts criticized the use of Dyersburg and proposed the use of a monitor located in Marion,, Arkansas. 'However, BRS and ADEQ witnesses testified that Dyersburg was similar to Mississippi County in land use, population, and terrain, and was therefore a proper representative monitoring site. PC&E credited the testimony of BRS and ADEQ witnesses, as was its prerogative. Williams v. Ark State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). We therefore affirm on this point.
Nucor further contends that BRS failed to model all of the steel mill’s emission sources. According to BRS’s permit application, the proposed mill contained approximately 100 sources of pollutant emissions, including sixteen sources from the mill’s melt shop. It is undisputed that BRS neglected to model the sixteen melt-shop sources. One of NueoFs experts, Mr. Schewe, testified that he ran-a model that included all omitted sources and that the result showed an exceedance of the PM2,B air-quality standards. However, BRS’s expert, Mr. Hoffnagle, calculated that the omitted sources would only have increased the PM2.5 concentration level by .004 pg/m3, meaning that no exceedance of air-quality standards would have occurred. PC&E accepted Mr. Hoffnagle’s analysis, and we defer to the agency’s expertise on this matter. The credibility and the weight of the evidence is within the administrative agency’s discretion. Williams, supra.
We next address Nucor’s claim that BRS’s air-quality analysis did not properly consider a phenomenon known as “building downwash.” Downwash occurs when turbulence forms as air tries to pass around a building. When an emission source is located-close enough to the turbulence, the emitted exhaust plume may be mixed closer to the ground, resulting in a higher pollutant concentration. BRS’s modeling correctly 1 ^incorporated the downwash characteristics of its own buildings. Yet Nucor contends that the downwash characteristics of other, nearby industries, such as the Bunge Grain Elevator, should also have been incorporated into the modeling. PC&E ruled that it knew of no legal authority for the proposition that BRS was required to consider downwash’ from other facilities.'. Given that Nucor’ has not demonstrated that PC&E erred in this conclusion, we see no basis for reversal.
The. Bunge Grain Elevator also figures in the final point under this topic. As mentioned earlier, BRS’s. initial modeling runs predicted that its mill, along with nearby industries would generate a PM2.5 concentration level of 2.56 p,g/m3. Upon receiving these results and discussing the matter with ADEQ, BRS consultant Steven Frey reassessed his modeling. One of the inputs, he had used in his modeling was the PM2,b emission level generated by the Bunge facility. The original inputs for Bunge used data derived from a twenty-four-hour-per-day operation. Frey determined that- Bunge did not operate twenty-four hours per day, and therefore the PM2.5 emissions from Bunge were overestimated. - Frey .then reduced the Bunge emission data to represent a twelve-hour-per-day operation. By. using this new data, BRS’s subsequent PM2.5 modeling calculation, was reduced to 2.47 |xg/m3. PC&E ruled that the adjustment was acceptable because it was more, representa tive of the actual operating hours of the grain elevator.
Nucor contends that BRS did not follow the EPA modeling guidance in making the Bunge adjustment. It cites a footnote to a table in 40 C.F.R. Part 51, Appendix W, as authority that BRS’s model was required to use an actual, two-year average for Bunge’s operating hours. However, that regulation also allows for the exercise of professional | ^judgment by the permitting authority in the modeling of nearby facilities. Given the testimony that the adjustment was more reflective of Bunge’s actual operation, and that BRS sought ADEQ approval before making the adjustment, we decline to reverse in light of our limited review.
VIII. Em'ors Affecting Public Comment
State regulators must provide an opportunity for public comment on the information submitted by the applicant for a new-construction permit. 40 C.F.R. §§ 51.161(b)(2) & 51.166(q)(2)(ii). Accordingly, PC&E regulations state that no permit shall be issued unless the public has first had the opportunity to comment on the information submitted by the applicant and on ADEQ’s analysis of the effect of the new construction on the region’s air quality. Ark. PC&E Regs. 18.306(A) & 19.406(A). In addition, ADEQ must submit a Statement of Basis setting forth the legal and factual basis for the Draft Permit. Ark. PC&E Reg. 26.506. Nucor argues that, for several reasons, the public in this case was denied the chance for meaningful and informed comment on BRS’s application and on the Draft Permit.
We first dispose of Nucor’s arguments that public comment was thwarted by the alleged misrepresentations of emission ac-hievability; the failure to model secondary PM2.5; the use of SILs; and the Bunge Grain Elevator adjustment. In light of our earlier holdings that no reversible error was demonstrated with regard to these very matters, there is likewise no basis for reversal under this heading:
For its remaining arguments, Nu-cor first contends that ADEQ made improper changes in the Draft Permit regarding certain Nitrogen Oxide values. We disagree. The |g,Draft Permit originally showed that BRS demonstrated a one-hour Nitrogen Oxide value of 37.6 p,g/m3. During the comment period, BRS stated that this figure was erroneous and should have been 181.8 qg/m3, which was stili below the federal ceiling of 188. ADEQ made the change, and the Final Permit reflected the 181.8 figure. Clearly, ADEQ made an open and above-board correction of what appears to be a mere scrivener’s error. We therefore see no reason to hold that the correction adversely affected the public’s ability to comment,
Secondly, Nucor cites a change made in the Final Permit regarding BRS’s Greenhouse Gas (GHG) emissions. BRS’s final application proposed a limit of .0723 tons of GHG per ton of liquid steel produced per year for certain operations. ADEQ placed this limit in the Draft Permit. However, after the Draft Permit was issued, BRS made a comment seeking a higher limit. BRS stated that the limit in the Draft Permit was based on an anticipated product mix, which, if changed, could produce higher emissions. BRS therefore asked ADEQ to increase the limit to .155 tons of GHG per ton of liquid steel to reflect a “worst case production output.” The Final Permit contained the revised limit.
Without belaboring the point, we agree with PC&E that Nucor has not shown that a change in a Draft Permit, made by ADEQ in response to a public comment, requires the public-comment period to begin anew. Nucor’s expert, Dr. Zeng, acknowledged that ADEQ incorporates changes into the Final Permit, based on public comments, and that the changes do not necessarily “have to go back out” for public comment. We affirm on this point.
[24IX.' Other Allegations of Error
Nucor claims that BRS and ADEQ used improper emission factors to estimate the emissions that would be discharged from certain plant sources. The EPA has a clearinghouse designated as AP-42, on which air-quality modelers may draw to obtain standardized emission factors. In this case, BRS and ADEQ did not use AP~42 but instead used factors developed by the Minnesota Pollution Control Agency. The Minnesota factors were much lower, and Nucor’s experts testified that they were unreliable and unachievable. However, BRS and ADEQ witnesses stated that the Minnesota figures were reliable and were actually developed by EPA. PC&E credited BRS’s and ADEQ’s testimony, and we defer to the agency’s decision on the credibility of witnesses and weight to be given their testimony. Williams, supra.
Nucor also argues that the emission rates from “several natural-gas combustion sources” were increased in the Final Permit but were not remodeled. However, Nucor’s brief does not identify these sources or otherwise provide us with sufficient information to conduct a review of this point. We therefore will not reverse. See Orintas, supra.
Finally, Nucor argués that BRS and ADEQ failed to conduct an appropriate additional-impact analysis. As part of the PSD process, an applicant must conduct an analysis of any impairment that its facility will cause to soil and vegetation and to visibility. The applicant must also assess the air-quality impact as a result of general commercial, residential, industrial, and other growth associated with the new plant. 40 C.F.R; 52,21(o). BRS’s growth analysis reads as follows:
The project being proposed by BRS will have no effect on construction and growth impacts. During the construction phase, BRS will employ various techniques to ^minimize the potential impact on the surrounding environment. The primary focus will be .to reduce the formation of . fugitive type particulates that ipay be generated during the construction phase.
The construction and operation of the proposed steel plant should not result in any noticeable residential growth in the area. Commercial growth is anticipated to occur at a gradual rate in the future. However, this growth will not be directly associated with the proposed plant in Mississippi County. The proposed plant should have a positive impact on the economic climate of Osceola by providing jobs for the área workforce.
Nucor’s expert, Mr. Schewe, offered his opinion that the above analysis should have been more “robust.” However, PC&E. discounted that opinion because Schewe had¡ no expertise in economic-growth analysis and did not conduct an economic analysis of the Mississippi County area. Further, ADEQ witness Thomas Rheaume testified that there were no legal guidelines for performing an additional-impact growth analysis and that the analysis submitted by BRS was consistent with the level of detail in past analyses received by ADEQ. Thus, as with other issues in this case, we recognize the specialization and experience of PC&E on these matters and, due to our limited review, affirm PC&E’s ruling.
Affirmed.
Abramson and Vaught, JJ., agree.
. Once. PSD requirements are met and the facility has been constructed, the applicant may receive an operating permit pursuant to Title V of the Clean Air Act. Arkansas has a unified permit process in which the PSD and Title V permit applications are considered simultaneously.
. Our supreme court also denied Nucor's petition for a writ of certiorari directed to this court.
. We note that Nucor does not develop an argument as to the constitutionality of section 8-4-223(d).
. Around this time, Nucor sent correspondence to ADEQ Director Teresa Marks demanding that ADEQ revoke, suspend, or modify BRS’s permit. When Marks did not respond, Nucor sought a writ of mandamus in Pulaski County Circuit Court. The court refused to grant the writ, noting that the AHO had not found that a misrepresentation occurred and that the Director’s decision on the matter was discretionary.
. Nucor argued in its reply brief that the lack-of-authority finding was erroneous, but we have previously held that an argument developed for the first time in a reply brief comes too late. Orintas, 'supra. ■ | [
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JOSEPHINE LINKER HART, Associate Justice
| Appellant, Kenyghatta Davis, both individually and as a class representative, brought a class-action complaint against appellee, the City of Blytheville, Arkansas (the City) and its Water Department (the Water Department). Davis appeals from the circuit court’s granting of summary judgment to the City. As she argued before the circuit court, Davis asserts on appeal that (1) because there is no statutory authority allowing the City to impose late fees, the Water Department’s charging of late fees on overdue accounts was an ultra vires act; (2) she was entitled to a declaratory judgment finding that the charging of the late fees was usurious and an unreasonable and unconscionable penalty. We affirm the granting of summary judgment.
A circuit court may grant summary judgment only when it .is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to | ¿judgment as a matter of law. See, e.g., Hotel Assocs., Inc. v. Rieves, Rubens & Mayton, 2014 Ark. 254, at 5, 435 S.W.3d 488, 492. 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. at 5-6, 435 S.W.3d at 492. In reviewing a grant of summary judgment, an appellate court de termines' if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. at 6, 435 S.W.3d at 492. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id., 435 S.W.3d at 492.
In 2005, Ordinance Number 1598 was passed, which set the rates for the City’s water-system services. The ordinance provided as follows:
Bills are to be rendered monthly for residential, commercial, industrial and municipal accounts. If customers pay within ten (10) days of billing, the amount shall be the net amount as shown on the bill. After ten (10) days, there shall be added a 10% penalty hereby added. After twenty (20) days, the payment due shall be delinquent and service may be discontinued. A ten dollar ($10.00) re-connect charge will be made to reinstate service.
In 2009, Ordinance Number 1687 repealed the above ordinance and provided as follows:
Bills are to be rendered monthly for residential, commercial, industrial and municipal accounts. Customers paying by the . due date shall pay the. net amount as shown on the bill. Payments received after the due date shall be charged a 10% late fee. After fifteen (15) days, the payment due shall be delinquent and service may be discontinued. A twenty ($20.00) penalty charge will be assessed on all delinquent accounts.
In her third amended complaint, Davis noted these ordinances and charges. Davis further alleged that the Water Department also imposed the 10 percent charge on . services billed by the Water Department on .behalf of other departments. Davis asserted that no state ^statute authorizes a late fee or penalty and that the ordinances are therefore illegal, and the enforcement of the ordinances is an ultra vires act. Davis further argued that the late fee is .usurious, and because it bore no rational relationship to the costs and expenses the Water Department incurs in collecting delinquent accounts, it was an unreasonable and unconscionable penalty. Davis also alleged that these ordinances did not authorize the Water Department to charge late fees on behalf of other departments and that no ordinance authorized a late fee on charges other than water usage. Davis asked for a declaratory judgment and damages.
Both parties sought summary judgment, The City presented the affidavit of Gary Phillips, the director of the City, who stated that the 10 percent late fees were for customers who had failed to make timely payments and were designed to encourage customers to make'timely payments. In his deposition, Phillips stated that the 10 percent late fee was an incentive to pay a bill on time. Also, Phillips stated in his deposition that the Water Department did not incur any additional costs during the fourteen-day period before the 10 percent late fee was imposed and that it did not incur additional costs, until the time to disconnect. Phillips also noted that the Water Department collected for water, sewer, sanitation, and mosquito control.
The circuit court concluded that the City had implied authority, express authority, and authority incident to other powers granted to the waterworks and municipalities to' establish and assess fees for late payments. The court further acknowledged Davis’s argument that the City had acted illegally by'allowing the Water Department to assess fees for late payments based on charges arising out of other de partments. The court observed that, while the bill | includes other charges for services rendered, these charges were related either to the operation of the Water Department or to charges that the City had authorized the Water Department to collect. The court concluded that expressed, implied, and incidental authority authorized the City to assess fees for late payments on these charges. The court further observed that Davis had failed to offer any legal support for the claim that allowing the Water Department to collect these charges violated the law and that Davis had not offered support that the City could not assess fees for late payments of these services.
As an initial matter, we note that, effective July 27, 2011, Arkansas Code Annotated section 14-43-602(b) (Repl. 2013) provided that the “rulé of decision known as ‘Dillon’s Rule’ is inapplicable to the municipal affairs of municipalities.” Dillon’s Rule is a restrictive view of municipal power that a municipal corporation possesses and can exercise only powers granted in express words, those necessarily or fairly implied in, or incident to, the powers expressly granted, and those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable. Tompos v. City of Fayetteville, 280 Ark. 435, 438, 658 S.W.2d 404, 406 (1983). This court has not been asked by either .party to opine in this case on the change in, law relating to Dillon’s Rule. Further, consideration of the question is not essential to our disposition of this case.
Davis contends on appeal that there is no statutory authority allowing the City to assess a late fee unless the City first seeks judicial relief. In support of her argument, she points to two statutes. The first, Arkansas Code Annotated section 14-234-602 (Supp. 2015), provides that “[a]ny person who is delinquent on the payment for water, wastewater service, or sewerlflservice provided by a water system may be held liable, at the discretion of a court of competent jurisdiction, for attorney’s fees and costs incurred in the collection of the delinquency/’ The second, Arkansas' Code Annotated section 14-235-223(h) (Repl. 1998), provides that if “any service rate or charge established shall not be paid within thirty (30) days after it is due, the amount of It, together with a penalty of ten percent (10%) and a .reasonable attorney’s fee, may be recovered by the sewer committee in a chancery suit.”
Davis argues that these statutes allow courts to impose late fees if an action for collection ■ of a past-due account is commenced and judgment is rendered in favor of the City, but no other Arkansas statute expressly allows a city or its water department to charge a late fee or late penalty. Davis contends that, absent a specific legislative grant of the authority to pass such an ordinance, any attempt by the City to levy late fees or penalties is an ultra vires act and thus void. She further asserts that the legislature’s express grant of authority allowing a water company to bring a cause of action to collect a 10 percent penalty is the equivalent of a declaration that no such penalty can be collected absent a court order,. Finally, Davis argues that the City’s own ordinances do not authorize a 10 percent penalty on anything other than water usage, and any penalty or late fee on other charges cannot be supported by the City’s own ordinances.
Davis’s argument, however, does not take into full account our constitutional and statutory law relating to municipalities. The state constitution provides that “[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state,” Ark. Const, art. XII; § 4. Keeping in mind this constitu tional mandate, we note that Arkansas Code | (¡Annotated section 14-43-602(a) (Repl. 2013) provides that a “municipality is authorized to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs, including, but not limited to, the power to tax.”
Municipal corporations have power to construct or acquire waterworks and to regulate them. Ark.Code Ann. § 14-54-702(a)(1). A municipality constructing a waterworks system may sell the water to private consumers. Ark.Code Ann. § 14-234-203(d). ' The municipality may fix rates for the consumers. Ark.Code Ann. § 14-234-214(a). Because it is necessary for the public health, safety, and welfare, these statutes are liberally construed to effectuate the purposes of the statutes. Ark.Code Ann. § 14-234-102.
The “municipality shall have power, and it shall be its duty, by ordinance to establish and maintain just and equitable rates or charges for the use of and the service rendered by the works.” Ark.Code Ann. § 14-235-223(a)(l). Municipalities are also authorized- and empowered to own, acquire, construct, equip, operate, and maintain a sewage collection system or a sewage treatment plant. Ark.Code Ann. § 14-235-203(c)(l). Again,, being necessary for the public health, safety, and welfare, these statutes are liberally construed to effectuate the purposes of the statutes. Ark.Code Ann. § 14-235-202.
In this case, both Ordinance Number 1598 and Ordinance Number 1687 provided that- failure to pay. a bill by a certain date resulted in the imposition of a 10 percent penalty. According to Arkansas Code Annotated section 14-55-601(a) (Supp. 2015), “Bylaws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties on any person offending against or violating them. The grant of power to 17impose a fine or penalty was discussed by this court in Weeks v. City of Paragould, 230 Ark. 908, 328 S.W.2d 81 (1959). There, an ordinance made it unlawful for a dog owner to allow or permit a dog to run at large within city limits, and the violation was made a misdemeanor punishable by a fine. An Arkansas statute concerning the powers of municipal corporations, however, only provided that the municipalities had the power to prevent the running at large of dogs, and injuries and annoyances therefrom, and to authorize their destruction. Ark. Stat. Ann. § 2502 (Repl. 1980) (current version at Ark. Code Ann. § 14-54-1102 (Repl. 1998)). After noting that municipal corporations could enforce ordinances by imposition of fines, the court noted that because municipal corporations “have power to prevent the running at large of dogs and to prescribe fines against persons 'who violate the ordinance, it necessarily follows that the City of Paragould had the power to adopt Sections 1 and 3 of the Initiated Ordinance No. 1 here involved.” Id. at 910, 328 S.W.2d at 83. The court concluded that the “fact that the dog might be impounded does not prevent the. City from levying a fine against the person who permitted the dog' to run at large.” Id., 328 S.W.2d at 83.
Arkansas Code Annotated section 14-235-223(a)(l) gives a city council the power “to 'establish and maintain just and equitable rates or charges for the use of and the service rendered by the works.” (Emphasis added.) We must read that statute in conjunction with Arkansas Code Annotated section 14-235-202 which provides us guidance on the interpretation of this statute. Section. 14-235-202 states that the “act, being necessary for the public health, safety, and welfare, shall be liberally construed to effectuate its purposes.” When section 14-235-223(a)(1) is construed liberally, as section 14-236-202 instructs, cities have the implied |sauthority to establish a late fee as a “rate or charge” under section 14-236-223.
Practically speaking, this authorized rate or charge in the form of a late fee is a necessary and essential part of the operations of the City, as the general manager of Blytheville Waterworks testified, because they encourage customers to pay on time. Indeed, if customers do not pay timely, the Water Department cannot pay its bills timely. Thus, the establishment of late fees is essential to the functionality of the Water Department, and construing section 14-235-223 liberally, late fees are “rates and charges for the use of and the service rendered by the works.” The two statutes relied on by Davis, Arkansas Code Annotated section 14-234-602, and Arkansas Code Annotated section § 14-235-223(h), do not limit the administrative power of a municipality to levy a fíne or penalty against a person who has not paid his bill for water or sewer services as the exclusive remedy. Rather, these statutes give municipalities the additional authority to file suit in court and seek attorney’s fees in litigation concerning the collection of those delinquent accounts. Thus, in accordance with these statutes and Weeks, the City could impose a late fee when there is a violation of the ordinance relating to the payment of a bill.
Davis- further asserts that there is “not one single ordinance which allows the water! department to impose a late fee or penalty on any portion of a bill” other than the ordinance relating to water. In cursory fashion, and without citation to authority, Davis asserts that “any late fees imposed on any other charges other- than water fees are not even authorized by the city’s own ordinances and are, therefore, illegal and ultra vires.” Other than making this assertion, however, Davis does not develop the argument or otherwise challenge the circuit 19court’s observation that while the bill includes other charges for services rendered, these charges either were related to the operation of the Water Department or were charges in which the City authorized the Water Department to collect payment. We do not research or develop arguments for' appellants. See, e.g., Myers v. Ark. Dep’t of Human Servs., 2011 Ark. 182, at 15, 380 S.W.3d 906, 915. We do note that the record contained a sanitation ordinance that permitted the assessment of a late’ fee, as well as an ordinance that permitted the Water Department to bill for City services.
Davis does argue that these late fees are usurious and an unreasonable and unconscionable penalty. In its order, the circuit court concluded that the late charges are not usurious. The court stated that because the penalty may be avoided by discharging the debt when due,, no usury claim ■ exists. A similar approach was taken in Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W.2d 701 (1974), where this court stated that because the buyer has it in his power to avoid the penalty by discharging the debt when it is due, agreements for penalties to induce prompt payment are free from usury. We .hold that Hayes controls, and we .likewise conclude that the late fees are not usurious.
This court acknowledged in Hayes that an agreement will be declared usurious if it is shown to be a mere contrivance to avoid usury and that the real intention is a loan or forbearance of money and the taking of more than legal interest; but such an intention must first be made manifest from the agreement itself or from extraneous proof. The City submitted Phillips’s affidavit, .however, in which he stated that the late fees applied to customers who had failed to make timely payments and were designed to encourage timely payments by the hpcustomers. Davis did not meet this proof with proof that the late fee was a mere contrivance to avoid usury. Moreover, the late fees.are neither unreasonable nor an unconscionable penalty. The statutory limits on penalties permitted for violations of ordinances, which is set out in Arkansas Code Annotated section 14-55-504(a) (Supp. 2015), greatly exceeds the late fee imposed here. That provision permits municipalities to assess by ordinance a fíne or penalty of $1000 for any violation of an ordinance, double that sum for each repetition, or $500 a day for continuous offenses.
Accordingly, we hold that summary judgment in favor of the City was proper.
Affirmed.
Danielson and Wynne, JJ., dissent. | [
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HOWARD W. BRILL, Chief Justice
| petitioner DeSoto Gathering Co., LLC (“DeSoto”), has filed a petition for a writ of prohibition requesting that this court prohibit the Faulkner County Circuit Court from conducting further proceedings on a complaint filed by the respondents. Pursuant to Arkansas Supreme Court Rule 1-2(a)(3) (2015), we have jurisdiction of cases involving | ¡^extraordinary writs. We deny DeSoto’s petition for writ of prohibition.
On April 24, 2014, the Ramseys filed suit against DeSoto in the Faulkner County Circuit Court. According to the facts stated in the Ramseys’ complaint, DeSoto is an Arkansas corporation with its principal place of business in Conway, Faulkner County. Five of the respondents live in White County approximately 1250 feet from a natural-gas compressor station owned and operated by DeSoto, and the other eight respondents live in Van Burén County similarly near a compressor station owned and operated by DeSoto. The Ramseys alleged that these compressor stations emit more than 185 tons of pollutants per year into the air and cause significant noise levels and vibrations. Specifically, the Ramseys alleged strict liability and negligence and sought discomfort damages and personal injuries resulting from the stations’ noise, pollution, and vibrations. The Ramseys requested $3 million in compensatory damages and $5 million in punitive damages.
On June 9, 2014, DeSoto filed a motion to dismiss or transfer for improper venue pursuant to Arkansas Rule of Civil Procedure 12(b)(3), arguing that venue was not proper in Faulkner County. In its motion, DeSoto contended that, pursuant to Arkansas Code Annotated section 16-60-101 (Repl.2005), property-based causes of action were required to be filed where the real property was located. DeSoto also asserted that if the circuit court characterized the Ramseys’ suit as a personal-injury action, then, pursuant to Arkansas Code Annotated section 16-60-112(a), venue would be proper where the injury occurred. Thus, DeSoto reasoned that, because the compressor stations were located in "White County and Van Burén County and because the respondents’ allegations sounded in trespass, nuisance, or 1 spersonal injury, then venue was not proper in Faulkner County. On July 15, 2014, the Ramseys filed their response, arguing that DeSoto was judicially estopped from asserting lack of venue because of “a pattern of inconsistent pleadings [filed in the federal and state courts] which have been filed in an effort to manipulate jurisdiction and to gain an unfair advantage.” On December 2, 2014, the circuit court entered an order denying DeSoto’s motion to dismiss or transfer for improper venue. Subsequently, DeSoto filed a petition for writ of prohibition requesting that this court issue the writ to prevent the circuit court from proceeding for lack of proper venue.
DeSoto now requests that this court issue a writ of prohibition to prevent the Ramseys from proceeding in the Faulkner County Circuit- Court. The Ramseys counter that the extraordinary writ is not warranted in this case because the circuit court had jurisdiction to determine venue and that denying DeSoto’s motion to dismiss was within the circuit court’s discretion.
Historically, the writ of prohibition has been narrowly defined. One of the common law writs, it provides relief that bars, or prohibits, a lower court from proceeding with a matter. A writ of prohibition is an extraordinary remedy and “is only proper when the trial coürt \ Jias no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts.” McGlothlin v. Kemp, 314 Ark. 495, 497, 863 S.W.2d 313, 313 (1993) (citing Lupo v. Lineberger, 313 Ark. 315, 317, 855 S.W.2d 293, 294 (1993) (emphasis added)). As part of our superintending authority over circuit courts, we have the authority to issue the writ. Ark. Const. amend. 80, § 4.
First, a writ of prohibition is appropriate when the circuit court is wholly without jurisdiction. White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). Second, a writ of prohibition is appropriate when there is no other remedy, such as an appeal, available. White, 2011 Ark. 126, 380 S.W.3d 405. We have stated that prohibition is a proper remedy when the jurisdiction of the circuit court depends on a legal, rather than a factual, question. Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006). However, a legal question alone does not require this court to issue a writ of prohibition. This court confines its review to the pleadings in the case. Id.
Further, a writ of prohibition challenging an exercise of jurisdiction, even if erroneous and an abuse of discretion, is an improper usage of the writ. S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, 429 S.W.3d 215. Writs of prohibition are prerogative writs, extremely narrow in scope and, operation, and they are to be used with great caution and forbearance. Ark. Game & Fish Comm’n v. Mills, 371 Ark. 317, 265 S.W.3d 760 (2007). Prohibition should issue only in cases of extreme necessity. Ulmer v. Cir. Ct. of Polk Cty., 366 Ark. 212, 234 S.W.3d 290 (2006). Recently, this court stated that a writ of prohibition cannot be invoked to correct an order already entered. S. Farm Bureau Cas. Ins. Co., 2013 Ark. 322, 429 S.W.3d 215. “Each of the allegations in [the] petition concerns orders already entered by the circuit court. Because the circuit court has already acted, a writ of prohibition does not lie.” Id. at 5, 429 S.W.3d at 218. In short, the writ of prohibition is preventive in its purpose, not corrective.
As a general rule, a petition for a writ of prohibition is not the proper reme dy for the failure of a circuit court to grant a motion to dismiss. See, e.g., Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Southall, 281 Ark. 141, 661 S.W.2d 388 (1988). In recent cases, this court has declined to exercise the discretionary writ when a -circuit court has denied a motion to dismiss for improper venue. For example, in Arkansas Game and Fish Commission, 371 Ark. 317, 265 S.W.3d 760, the White County Circuit Court denied a motion to dismiss, and we denied the writ because"the first prong of the test for a writ of prohibition — whether a circuit court is wholly without jurisdiction — was not satisfied. Because the pleadings demonstrated a statutory basis fob venue in White County, the circuit court was not wholly without jurisdiction. Further, the second prong of the test — whether no other remedy, such as an appeal, is 'available — was not satisfied because the petitioner possessed another remedy. Simply put, the petitioner could have raised the venue issue by appealing the circuit court’s final order. Id.
Likewise, the writ of prohibition has also been properly denied when a motion to dismiss was granted by the circuit court. In Evans v. Blankenship, 374 Ark. 104, 286 S.W.3d 137 (2008), the Washington County Circuit court granted thé defendant’s motion to dismiss and transferred the matter to Jefferson County because it concluded that it lacked jurisdiction. Again, in denying the writ, this court, citing Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004), stated that “prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction.” Id. at 107, 286 S.W.3d at 140.
Admittedly, this, court has granted a writ of prohibition in cases in which improper venue was at issue. See Centerpoint Energy, Inc. v. Miller Cty. Cir. Ct., 372 Ark. 343, 276 S.W.3d 231 (2008); Premium Aircraft Parts, LLC v. Cir. Ct. of Carroll Cty., 347 Ark. 977, 69 S.W.3d 849 (2002). However, as we have previously explained, when we grant a writ for improper venue, we grant the writ because of the circuit court’s lack of jurisdiction. See Evans, 374 Ark. 104, 286 S.W.3d 137. Not every case of improper venue implicates jurisdiction. Venue and jurisdiction are frequently confused. Id, This court has treated the venue- issue as the equivalent of “jurisdiction over the person,” perhaps because of history rather than logic. See David Newbern, John Watkins & D.P. Marshall Jr., Arkansas Civil Practice & Procedure § 9:1 (citing Prairie Implement Co., Inc. v. Cir. Ct. of S. Dist. of Prairie Cty., 311 Ark. 200, 844 S.W.2d 299 (1992)). We granted the writ in Premium, where the plaintiff filed a complaint in the Carroll County Chancery Court alleging misappropriated trade secrets against the defendants who were located in Sebastian Coun: ty. After the circuit, court denied their motion to dismiss, the defendants sought a writ of prohibition, arguing that the plaintiff could not bring the action in Carroll County, the county of the plaintiffs residence. Concluding that the Carroll County Chancery Court was wholly without jurisdiction under the ^applicable venue statutes, we ¿greed and granted the writ. Id.
. Additionally, in Centerpoint Energy, Inc., 372 Ark. 343, 276 S.W.3d 231, we discussed the issuance of a writ of prohibition in -a matter alleging improper venue. There, we stated,
The purpose of a writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise.... [A] writ of prohibition is extraordinary relief that is ... appropriate when the trial court is wholly without jurisdiction. While jurisdiction is the power and authority- of the court to act, venue is the place where the power to adjudicate is to be exercised. Venue has thus often been- characterized as procedural rather than jurisdictional.
Id. at 354, 276 S.W.3d at 239 (citations omitted). ‘ In Centerpoint, we held that the circuit court did not have jurisdiction over the proceedings below because we had previously held in Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007), that the Arkansas Public Service Commission had sole and exclusive jurisdiction, rather than the circuit court, over the claims asserted by the respondents involving Centerpoint’s Arkansas customers. Id.
The present case is distinguishable from Premium and Centerpoint because the circuit court, in the instant case did not lack jurisdiction. As we have explained, both Premium and Genterpoint involved situations in which the circuit court “improperly retained jurisdiction and where venue was not proper in the respective courts. Thus, the court’s lack of jurisdiction over the persons warranted issuance of the-writs of prohibition.” See Evans, 374 Ark. 104, 108, 286 S.W.3d 137, 141. Here, however, the Ramseys properly filed, their action in the county of the petitioner, DeSoto. The Faulkner-County Circuit Court had jurisdiction over the subject matter, and personal jurisdiction was not in dispute because the-lawsuit was brought | sin the principal place of business of DeSoto. The only issue presented to the circuit court was the issue of venue. In their complaint, the Ramseys. stated sufficient facts to supp'ort venue in Faulkner County by asserting that DeSoto’s principal place of business rested in Conway, Faulkner County. -Thus, we conclude that the Faulkner County Circuit Court properly confined its review to the pleadings in the ease and properly ruled on DeSoto’s -motion to dismiss. For these reasons, we hold that DeSoto has failed to demonstrate that Faulkner County is wholly without jurisdiction on the issue of venue, and therefore, DeSoto is not entitled to a writ of prohibition.
We further note that DeSoto has the opportunity to raise the issue of venue in an appeal to this court. We have stated that a circuit court’s order regarding' improper venue may be appealed once a final, appealable order has been issued. See, e.g., Evans, 374 Ark. 104, 286 S.W.3d 137 (citing Gailey v. Allstate Ins. Co., 362 Ark. 568, 210 S.W.3d 40 (2005)). We have also held that once a final order has been entered, an appeal can be taken, and the question of venue, once put in issue, is not lost by ’ continuing through a trial of the matter. Heber Springs Lawn & Garden, Inc. v. EMC Corp., 275 Ark. 260, 628 S.W.2d 563 (1982) (citing Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980)).
Rule 2 of the Arkansas Rules of Appellate Procedure — Civil does not authorize an interlocutory appeal in this situation. Nor do we have a rule similar to 28 U.S.C. § 1292(b) that authorizes a circuit court to designate an order containing a controlling question of law, thereby certifying the question to this court. The extraordinary writ of prohibition has clearly defined uses; accordingly, our resort to it should be restrained. Granting a writ in this | ¡^particular instance would encourage any litigant who is dissatisfied with a circuit court ruling on venue to immediately seek a writ to review -that ruling. Such an expanded use .of the writ does not give proper deference to the rulings of the circuit court. .Nor is it consistent with our primary requirement of finality for purposes- of appeals and our policy against piecemeal appeals. Seeking immediate appellate review after a circuit court ruling on venue is not the proper time, and an extraordinary writ is not the method.
Petition for writ of prohibition denied.'
Special Justice Kristin Pawlik and Special Justice Mike Ryburn join.
Goodson and Wynne, JJ., dissent.
Danielson and Baker, JJ., not participating.
. The respondents are Barbara and Richard Ramsey, Cary and Richard Shirley, Virgie Parrott, Clifford and Loveta Pruitt, Allan and Tammy Peterson, Jeffrey and Kimberly Wyn-borny, Virginia Mills, and Molly Stone (collectively “the Ramseys”).
. DeSoto relies on various venue statutes in its .briefs. Recently, the enactment of Act 830 of 2015 has changed the language of these statutes cited by DeSoto.- However, that legislation became effective after the operative dates in this case, and in any event, does not apply in this instance.
. On the common law writs in general, see Timothy L. Evans, A Story of Certiorari: Jordan v. Cir. Ct. of Lee Cty., 60 Ark. L.Rev. 773 (2007).
.At the trial court level, a writ of prohibition is an order from the circuit court to an inferior court that prohibits the inferior court from proceeding in a case over which it has no jurisdiction. See Ark.Code Ann. § 16—115—101 (Repl.2006) | [
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WAYMOND M. BROWN, Judge
LAppellant James Reep appeals his conviction of driving while intoxicated (DWI), sixth offense. He argues on appeal ’that the evidence was insufficient (1) to convict him of DWI, and (2) to conclude that this was his sixth offense. We find no error and affirm.
On June 1, 2014, Officer Chris Runnels of the Benton Police Department observed appellant driving on the wrong side of the road. According to Officer Runnels, appellant was in his lane, facing him head on, and he had to activate his blue lights. At that time, appellant “slowly crept forward” and went around Officer Runnels’s patrol car, nearly clipping the rear of the car. Officer Runnels made a u-turn, and attempted to stop appellant. Appellant tried to turn into the Pilot Travel Center, but missed the driveway, nearly ran into a ditch, and had | ato corréet himself. Appellant pulled to the gas pumps and contact was made by Officer Runnels. Officer Runnels noticed that appellant smelled of alcohol. Appellant was asked to step out of the car and had to use his hands on the door and side of the car in order to keep his balance. An opened can of beer was observed in the center console and an unopened thirty-pack of beer was in the back. Appellant denied having anything to drink, but Officer Runnels stated that it was “very apparent ... that he [appellant] had been drinking because of the odor and how he was standing and swaying.” Appellant was administered field-sobriety tests, which consisted of (1) horizontal-gaze-nystagmus test, (2) a walk-and-turn test, and (3) a one-leg-stand test. Appellant failed all three tests. In fact, Officer Runnels had to stop the final test for fear that appellant would fall and hurt himself. Appellant was placed under arrest and taken to the police department. While at the police station, appellant consented to take a breath test to determine his blood-alcohol content. Appellant was found to have a blood-alcohol level of .26. Appellant was charged with violating Arkansas Code Annotated section 5-65-103.
Appellant’s bench trial took place on October 31, 2014. Officer Runnels testified about his encounter with appellant on the night of June 1. During his testimony, a video of the stop was shown. Additionally, the results of appellant’s blood-alcohol test were admitted into evidence without objection. Appellant made a motion for directed verdict at the conclusion of the State’s case. In the motion, appellant stated that there was “no evidence of | ^¡certification of the machine or the officer to give the test.” The court found that the evidence was more than sufficient, and in fact, that it was overwhelming, to support the charge. Appellant was found guilty of DWI.
The sentencing phase of appellant’s trial took place on November 4, 2014, During this phase, appellant’s prior convictions for DWI were admitted into evidence without objection. Appellant was sentenced, based on DWI, sixth offense, to three years in the Regional- Correctional Facility, followed by two years’ suspended imposition of sentence. Appellant filed a timely notice of appeal.
A motion to dismiss at a bench trial is identical to a, motion for directed verdict .at a jury trial in .that it. is , a challenge to .the .sufficiency of the evidence. The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Substantial evidence is evidence of sufficient certainty and, precision to .compel a conclusion one way,or the other and,;pass beyond mere suspicion or conjecture. On appeal, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.
Under Ark. Code Ann. § 5-65-103, it is unlawful for any, person who is intoxicated to operate or -be in actual physical control of a motor vehicle, or for any person to operate or |4to be in actual physical control of a: motor vehicle if at that time the alcohol concentration in .the . person’s breath or blood was:0.08 or more.
For his first point on appeal, appellant argues that the State failed to produce evidence of the machine being certified or that the officer was qualified to give the breath test. Although appellant made a motion to dismiss based' on the lack of evidence of certification, he did not object to the test results being admitted into evidence. Furthermore, our court has held that the reliability of a machine goes to the weight and credibility of the evidence, which was within the purview of the court. Additionally, the statute provides two different ways to prove the offense. Here, even if the test result was eliminated, the evidence was sufficient to support the conviction: appellant was driving in the wrong lane and nearly hit Officer Runnels’s patrol car when appellant attempted to go around it; appellant missed the driveway of the gas station nearly running into a ditch and had to correct himself; appellant smelled of alcohol and could not stand or walk without swaying; there was an open can of beer in the center console of appellant’s car; and appellant failed all three field-sobriety tests. Therefore, we affirm appellant’s conviction of DWI.
Next, appellant argues that the State failed to prove that this was his sixth offense. Under Ark. Code Ann. § 5-65-122, a sixth or subsequent offense of DWI occurring within |fiten years of a prior offense is a Class B felony. The State contends that this argument is not preserved for appeal. We agree. Appellant never objected to this conviction being counted as his sixth one in a ten-year period before the trial court. This court does not consider arguments made for the first time on appeal.
Affirmed.
Gruber and Hixson, JJ., agree.
. This is the second time this case has been before us. We initially ordered rebriefing due to deficiencies in appellant’s brief, abstract, and addendum, See Reep v. State, 2015 Ark. App. 538, 2015 WL 5734423.
. (Supp. 2015).
. Because this was a bench trial, appellant’s directed-verdict'motion was actually a motion to dismiss. See D.F. v. State, 2015 Ark. App. 656, 476 S.W.3d 189.
. Gill v. State, 2015 Ark. 421, 474 S.W.3d 77.
. Id.
. Id.
. Id.
. See Perrigen v. State, 2015 Ark. App. 42, 2015 WL 374919.
. See Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).
. The entire encounter was captured on video.
. This statute was repealed by Acts of 2015, No. 299, § 6, eff. July 22, 2015.
. Lewis v. State, 2014 Ark. App. 136, 432 S.W.3d 145. | [
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’ CLIFF HOOFMAN, Judge
11 Appellant Rosman Chantharath appeals from his conviction for delivery of a controlled substance (methamphetamine), for which he received a sentence of five years’ imprisonment and a $10,000 fine. On appeal, Chantharath argues (1) that the circuit court abused its discretion by refusing to allow him to cross-examine a witness about a pending petition to revoke her probation and (2) that the circuit court’s refusal to allow this evidence violated his right to confront the witness against him. We affirm. •r .
On October 14, 2013, Chantharath was charged with one count of delivery of a controlled substance (methamphetamine). The jury trial was held on August 28,2014. At | atrial, Detective Gene Johnson with the Springdale Police Department testified that a confidential informant (Cl), Robin Delgado, participated in a controlled purchase of methamphetamine from Chan-tharath on July 29, 2013. Johnson stated that Delgado had previously been arrested on a shoplifting charge and that she had inquired of her arresting officers if she could “help herself out” with her charge by assisting the police. Johnson met with Delgado, had her sign a cooperating-individual agreement, and then obtained permission from the circuit court in Benton County, where Delgado had been placed on probation, to have her act as a CL
Johnson testified that on July -29, 2013, Delgado contacted him and told him that she would be able to purchase methamphetamine from a person she referred to as “Stacks.” Johnson determined that “Stacks” was Chantharath, and he showed a picture of Chantharath to Delgado, who affirmatively identified the person in the picture as “Stacks.” Johnson stated' that he searched Delgado and her vehicle, gave her fivé $20 bills with which to buy the methamphetamine, and then followed her to Chantharath’s apartment. Sergeant Anthony Murphy testified that he was parked in the parking lot of the apartment building and witnessed Delgado enter' and exit the apartment. Johnson testified that Delgado wore a wire and that he could also hear the entire transaction. He then followed Delgado to a predetermined location for debriefing. She' turned over the wire and the methamphetamine and indicated that it was Stacks who had sold her the drugs. An audio recording of the controlled buy between Delgado and Chan-tharath was played for the jury and admitted into evidence.
|sOn cross-examination, Johnson was questioned as to Delgado’s motivation for acting as a Cl. Johnson stated that Delgado had agreed to assist the police in order to work off some of her fines from district court due to her misdemeanor shoplifting charges. Johnson testified that he was aware that Delgado was also on active probation for felony charges because he had to get permission from the circuit court and Delgado’s probation officer for her to act as a Cl; however, he indicated that her assistance was only of benefit to her misdemeanor charges and did not affect her felony probation.
In her testimony at trial, Delgado again identified Chantharath as the person who had sold her the methamphetamine on July 29, 2013. She admitted that she had been previously convicted of possession of methamphetamine in Benton County and that she was currently on probation for that charge. She also admitted that she had been convicted of misdemeanor shoplifting in 2010, in addition to convictions for contempt and failure to appear in district court in 2011 after she had failed to pay her fines. Delgado indicated that she had offered to assist the police in exchange for payment of her fines and that she had picked Chantharath- because he was the only person she knew that was - selling drugs at that time.
Defónse counsel then questioned Delgado about whether she had any pending charges against herí and the prosecution objected, arguing that evidence of any pending charges was inadmissible under Arkansas Rules of Evidence 608. The defense responded that' this evidence was relevant to Delgado’s bias or motive to fabricate her testimony and to her perception of what she might hope to gain by testifying favorably for the prosecution. The circuit court allowed' the defense to voir dire Delgado outside the presence of the jury to |4determine whether any promises had been made to her in connection with any of her pending chargés.
During voir dire, Delgado admitted that she had a pending felony charge in Washington County for performing body art on a. minor and that she was facing a potential revocation of her felony probation; however, she denied that she had been promised anything by the prosecution with regard to those charges. She further stated that she did not expect to receive special treatment or leniency -with respect to those charges as a result of her testimony.
•The defense then argued that Delgado’s credibility regarding her motive to testify against Chantharath was for the jury to determine- and that it would violate Chan-tharath’s right to confrontation under the Sixth Amendment of the United States Constitution, as well as the equivalent right under the Arkansas Constitution, if he was not allowed to cross-examine Delgado about her pending charges. The circuit court inquired if the defense had any evidence that Delgado had been offered anything for her testimony in connection with her pending charges, and the defense replied that it did not. The court then ruled that the probative value of evidence of any pending charges against Delgado was slight and “that the prejudicial effect on the jury would be far more damaging and lead to a likelihood of a miscarriage of jus.tice.” The court ruled that this evidence was inadmissible, although the defense was allowed to further question Delgado regarding her agreement to act as a Cl in exchange for payment of her fines on her previous convictions. The circuit court also ruled that 'Chantharath’s constitutional rights of confrontation and due process were not violated.
IfiThe defense proffered the testimony of Christina Duncan, Delgado’s probation officer, who indicated that Delgado had agreed, as one of the conditions of her probation, that she would not perform undercover work for the police. Duncan indicated that Delgado had obtained permission from the circuit court to deviate from this condition so that she could act as a CL Duncan also testified that Delgado had violated her probation by committing new offenses, that she had submitted paperwork to have her probation revoked, and that Delgado was facing imprisonment if her probation were to be revoked. According to Duncan, when Delgado “gets desperate, she does desperate things.” At the conclusion of the proffer, the circuit court reiterated its previous ruling excluding evidence as to any pending charges against Delgado.
At the conclusion of the trial, Chanthar-ath was convicted of possession of a controlled substance (methamphetamine) and was sentenced to five years’ imprisonment and a $10,000 fine. He filed a timely notice of appeal from the September 12, 2014 sentencing order.
On appeal, Chantharath first argues that the circuit court abused its discretion by refusing to allow him to cross-examine Delgado about a pending petition to revoke her probation. He contends that this evidence was relevant to the issue of whether Delgado was motivated by a fear of imprisonment to produce false evidence against Chantharath. Although he recognizes that the audio recording of the drug buy was played for the jury, Chantharath argues that none of the officers witnessed the transaction and that there was no proof that Delgado obtained methamphetamine from Chantharath. Instead, he contends that Delgado could, have hidden the methamphetamine on her person, as she was not strip-searched prior |6to the controlled buy. Thus, Chantharath asserts that Delgado’s credibility was at issue and that the jury did not have the full picture of her possible motivation in testifying against him.
A trial court’s ruling limiting the scope of cross-examination of a witness is reviewed under an abuse-of-discretion standard. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). A defendant should be accorded a wide latitude in cross-examination to impeach the credibility of a witness against him. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70. Thus, it is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Id. This rule applies to testimony given under expectation or hope of immunity or leniency. Id. Our supreme court has held that the test is the expectation of the witness and not the actuality of a promise. Id. While the right of a defendant to show the bias of a witness does not' lie within the- trial court’s discretion, “[o]nce the main circumstances showing bias have been admitted, the trial court may impose reasonable limits on cross-examination based upon concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, confusion of issues, or interrogation that is repetitive or only marginally relevant.” Id. at ,¶ 9, 318 S.W.3d at 77 (citing Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994)).
There was no abuse of discretion by the circuit court in this case in limiting the cross-examination of Delgado. Chanthar-ath was allowed to thoroughly question Delgado about her agreement to act as a Cl for the police in return for payment of her outstanding fines resulting from her shoplifting conviction. Delgado also testified without objection that she was currently on probation for felony charges. While Chantharath argues that he should have 17been able to question Delgado about a pending petition to revoke her probation, there was no evidence presented that a revocation petition had actually been filed. Instead, Delgado’s probation officer indi-cáted in her proffered testimony that she had merely submitted the paperwork so that a revocation petition could potentially be filed. Furthermore, there was no evidence presented by Chantharath that an offer of leniency had been made by the prosecution with respect to any pending charges against Delgado, including a potential revocation of her probation. To the contrary, Delgado testified during voir dire that she did not have any reason to expect that she would be given special treatment or leniency in connection with her pending charges. Under these circumstances, the circuit court did not abuse its discretion in ruling that the marginal probative value of this evidence was outweighed by the danger of prejudice.
Chantharath cites to Klimas. v. State, 259 Ark. 301, 534 S.W.2d 2(32 (1976), in support of his argument. However, the facts in that case are distinguishable. In Klimas, the prosecution objected when the defense asked Klimas’s accomplice whether he was aware that the prosecutor would be asked to make a recommendation to the parole board before a convict was paroled, and the trial court sustained the objection. Id. On appeal, the State admitted that the ruling was erroneous, but our supreme court found that the error was harmless. Id.
Here, Chantharath. was not denied the opportunity to question Delgado regarding her potential bias or motives for testifying. While the circuit court limited the scope of the cross-examination, it did so only after finding that there was no evidence that there was a deal goffered to Delgado and that Delgado had no expectation, of leniency with regard to any, of her pending charges. Thus, there was no abuse of discretion by the circuit court, and we affirm on this point. •
In his second point on appeal, Chantharath contends that the circuit court’s limitation of his cross-examination of Delgado violated his Sixth Amendment right to confront witnesses against him. In Bowden v. State, 301 Ark. 303, 308-09, 783 S.W.2d 842, 844 (1990), our supreme court stated the following with regard to cross-examination and a defendant’s right of confrontation:
The sixth amendment to the United States. Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15,106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). See also Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). In fact, “[t]he main and essential purpose of confrontation'is to secure for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Winfrey v. State, supra.
However, the right to cross-examine the prosecution's witnesses is not unlimited. United States v. Cameron, 814 F.2d 403 (7th Cir.1987). Trial judges have-wide latitude insofar as the Confrontation Clause is concerned “to impose reasonable limits on such cross-examination based on concerns about, among .other, things, harassment, prejudice, confusion of issues, the witnessfs] safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, supra. The Confrontation Clausé “guarantees an opportunity for effective cross-examination, hot cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, supra; Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
In order to determine' whethér the restrictions placed on the right to crbss-examine a witness rise to the level of a constitutional deprivation, a reviewing court must look “to the record as a whole” and resolve whether the restrictions that the trial court imposed on the defendant’s cross-examination created a substantial danger of prejudice by depriving the "defendant of a meaningful opportunity to elicit ^available, relevant information that was likely to effectively impeach the credibility of the witness. See United States v. Cameron, supra; United States ex rel. Blackwell v. Franzen, 688 F.2d 496 (7th Cir.1982), cert. denied, 460 U.S. 1072, 103 S.Ct. 1529, 75 L.Ed.2d 950 (1983). In considering whether there has been a deprivation of meaningful cross-examination in violation of the Confrontation Clause, courts have considered various factors, such as whether an effective cross-examination would have been crucial to the defense. See United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988).
Chantharath argues that the circuit court’s ruling dénying him the opportunity to question Delgado about her probationary status rose to the level of a constitutional violation, and he' cites to Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, the defendant sought to cross-examine a prosecution witness about his status as a juvenile delinquent in order to show that the witness might have incorrectly identified the defendant in order to shift attention from himself and to avoid having his probation revoked. Id. The Supreme Court reversed the defendant’s conviction, holding that the defendant was denied the right of effective cross-examination as guaranteed under the Sixth Amendment. Id.
Here, however, Chantharath was not denied the opportunity to effectively cross-exámine Delgado regarding her motives for testifying. Indeed, Delgado admitted that she offered to act as a Cl -in order to help herself out with her fines. She also admitted that she was on probation for a felony conviction at the time of trial. The
circuit court ruled that if. Chantharath could offer any evidence to connect Delgado’s pending charges or the potential revocation of her probation to her motivation to testify at-trial, then it would allow further Cross-examination on that issue. However, Delgado denied such a connection, and there was no other evidence presented by Chantharath that tied her testimony to an expectation of leniency on any pending charge. The Supreme Court has held that a trial court has wide Indiscretion insofar as the Confrontation Clause is concerned to limit cross-examination based on concerns about prejudice or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed,2d 674 (1986). As discussed under Chantharath’s first point on appeal, the circuit court in this case, found that further cross-examination of Delgado with respect to her probation and pending criminal charges was of marginal relevance and was unduly .prejudicial. Thus, Chantharath was not denied the right to effectively cross-examine the witnesses against him, and he has failed to demonstrate a violation of his right of confrontation. Accordingly,- we affirm on this point on appeal as well.
Affirmed.
Gruber and Whiteaker, JJ., agree.
. This appeal returns to us after we remanded to settle and supplement the record with the official transcription of the audio recording of the drug buy that was played for the jury at trial. Chantharath v. State, 2015 Ark. App. 442, 2015 WL 5162731. We also ordered Chantharath to file a substituted abstract, brief, and addendum incorporating the verbatim transcript. Id. He has complied with this court's previous opinion, and we now address the merits of his arguments on appeal. | [
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HOWARD W. BRILL, Chief Justice
|!Appellant Serandon Starling appeals from the sentencing order entered by the Miller County Circuit Court reflecting his convictions and sentences for first-degree murder and committing a terroristic act. Each offense was enhanced for employing a firearm, and Starling was sentenced as a habitual offender to a total term of life imprisonment plus fifteen years. The at torney appointed to represent appellant on appeal has filed a motion to -withdraw as counsel and a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Arkansas Supreme Court Rule 4 — 3(k) (2015), asserting that the appeal is without merit. In accordance with Rule 4-3(k)(2), our clerk furnished appellant with a copy of the brief. | ¡Appellant submitted two pro se points for reversal, and the State has responded. Because appellant received a sentence of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2015). We' find no reversible error and, therefore, affirm, appellant’s convictions and grant counsel’s motion to withdraw.
I. Facts
The following facts are adduced from the testimony and evidence presented at trial. On April-18, 2013, Demetrica Satter-white contacted Prank Starling, appellant’s brother (“Frank”), and told him that Billy “Wild Bill” Hawkins, was interested in buying some crack cocaine from him. According to Satterwhite, Wild Bill planned to sell the drugs to some men from Ash-down. Satterwhite drove Prank, Wild Bill, and Aundrey Battle to a local McDonald’s, where she saw her cousin, Andrew “P.J.” Cheatham.- Satterwhite got out of her car and went over to P.J.’s car to talk to him; Wild Bill, who had possession of the drugs, followed her. Wild Bill then got in P.J.-’s car, and the two of them drove off together.
Frank became angry when Wild Bill left with the drugs without paying for them and accused Satterwhite of setting him up to get robbed. According to Satterwhite, Prank forced her to drive Battle and him around town to look for P.J. and Wild Bill. During the pursuit of P.J. and Wild Bill, Satterwhite stopped at Frank’s house and picked up Justin Benton. She then drove to Brittany Baker’s house, where she saw a gold car parked outside, and picked up Khyia Primm and Quanissa Johnson. Sat-terwhite, Frank, and. the others stopped for gas at a local convenience store, where Satterwhite said she saw the gold car again. Satterwhite went into the store and saw appellant, whom she did not know. Satterwhite testified that |3appellant identified himself as Serandon and that she later learned that he was in the gold car.
Satterwhite walked out of the store, and one of her passengers saw P.J. drive by, so Satterwhite and the driver of the gold car started following P.J.’s car. Satterwhite testified that the. driver of the gold car blocked off P.J.’s car o.n a side street and that she pulled up behind P.J.’s car. Appellant got out of the gold car and went to P.J.’s car. Appellant shot at P.J.’s vehicle, and one of the bullets struck P.J. in the forehead, killing him.
II. Adverse Rulings
A. Directed Verdict — Credibility
Counsel contends that the circuit court did not err in denying appellant’s motions for directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the. evidence. E.g., Anderson v. State, 2011 Ark. 461, at 3, 385 S.W.3d 214, 217. This court determines whether the' verdict is supported by substantial evidence, direct or circumstantial. Id., 385 S.W.3d at 218. Substantial evidence is evidence that is forceful enough to compel á conclusion one way or the other beyond suspicion or conjecture. Id., 385 S.W.3d at 218. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 218.
A person commits first-degree murder if “[w]ith a purpose of causing the death of another person, the person causes the death of another person.” Ark.Code Ann. § 5-10-102(a)(2) (Repl.2013). “A person commits a terroristic act if, while not in the commission of a 'lawful act, the person [s]hoots at or in any planner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause |4injury to another person or damage to property,” Ark.Code Ann. § 6—13—310(a)(1) (Repl.2013). “A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1) (Repl.2013).
At trial, appellant moved for a directed verdict, contending that the State had presented no credible evidence to maintain the charges. Specifically, appellant argued,
[W]e note the lack of credibility of witnesses due to their prior inconsistent statements and motives to lie based on their testimony here in court and the fact that they had charges pending or wanted to avoid having charges brought at all against them..
The State responded,
I would ask the court to recall the testimony of the witnesses, specifically not only the law enforcement officers, but Demetrica Satterwhite, Phillip Blackwell, Shae Jones, and Justin Benton who were all present at the time this shooting occurred.
Demetrica Satterwhite specifically testified that it was Serandon Starling who fired the gun that killed P.J. Phillip Blackwell specifically stated that it was Serandon- Starling-that fired the weapon. Shae Jones specifically stated that Ser-andon Starling had a weapon that he produced from his waistband when he got out of the car and she saw him with it again when he returned to the car. And Justin Benton stated that he saw Serandon Starling retrieve a gun from his Camero [sic] before getting into the car. He always carried, a. .45 and that he specifically recalled Serandon Starling shooting that .45 . striking P.J.’s car. The bullet that was recovered from RJ.’s head was a- .45 which can- be directly linked back to the gun that Mr. Starling possessed and shot.
Regarding their motive to testify, there are ... no charges pending against Shae Jones nor has there been any indication to her by the State that- any charges would be brought. Mr. Benton currently has charges pending and no agreements have been made by the State with Mr. Benton. Demetrica Satterwhite.has charges pending and she specifically testified under oath that no promises have been made to her by the State in exchange for her testimony. No plea bargains have been made by the State, with the State in-exchange for her testimony.
jsVariances and discrepancies in the proof go to the weight or credibility of the evidence and matters for the fact-finder to resolve. Marts v. State, 332 Ark. 628, 644, 968 S.W.2d 41, 49 (1998). 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. E.g., Burley v. State, 348 Ark. 422, 430, 73 S.W.3d 600, 605 (2002). Accordingly, -when there is evidence of a defendant’s guilt, even if it is conflicting, it is for the jury as fact-finder to resolve any conflicts and inconsistencies; it is not for the court to resolve on ‘ a directed-verdict motion. Marts, 332 Ark. at 644, 968 S.W.2d at 49; see also State v. Long, 311 Ark. 248, 251, 844 S.W.2d 302, 304 (1992) (stating that “when a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction”).
In his directed-verdict motions, appellant did not specify which witnesses gave inconsistent prior statements, which witnesses were motivated to lie because they had charges pending, or which witnesses wanted to avoid charges. Nevertheless, we conclude that, through the testimony and evidence presented at trial, the jury was apprised of the witnesses’ involvement in the crime.
Moreover, the jury heard testimony regarding whether witnesses had pending charges. Satterwhite and Phillip Blackwell, who was a passenger in the gold car, testified that appellant shot at P.J.’s vehicle. Satterwhite testified that she was incarcerated in the Miller County Sheriffs Department with a charge pending for first-degree murder. She stated that she was testifying for the State but that the State had made her no promises and that she had not | ¿received a plea deal for her •testimony. Shae Jones, appellant’s girlfriend, testified that she was with appellant at the time of the murder, that appellant had a weapon that he produced from his pocket when he got out of the car, and that she saw him with the gun when he returned to the car. Justin Benton testified that he saw appellant shoot at P.J. Benton also testified that he faced criminal charges for hindering apprehension in connection with the murder.
The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. E.g., Smoak v. State, 2011 Ark. 529, at 6, 385 S.W.3d 257, 261. Viewing the evidence in the light most favorable to the verdict, we conclude that it was reasonable for the jury to infer from the circumstances that appellant committed the offenses of first-degree murder and terroristic act. We hold that the circuit court did not err in denying appellant’s motions for directed verdict.
B. Jury Instruction — Reckless Manslaughter
At trial, the circuit court instruct ed the jury on first-degree murder and the lesser-included offense of second-degree murder and refused appellant’s request to instruct the jury on the lesser-included offense of reckless manslaughter. We have often stated that refusal to give an instruction on a lesser-included offense is reversible error if the instruction is supported by even the slightest evidence. E.g., Ellis v. State, 345 Ark. 415, 418, 47 S.W.3d 259, 260 (2001). However, we will affirm a trial court’s decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id. at 418, 47 S.W.3d at 260.
Counsel contends that the circuit court did not err in refusing to instruct the jury on 17reckless manslaughter pursuant to Arkansas Code Annotated section 5-10-104(a)(3) (Repl.2013), which states that a person commits manslaughter if the person recklessly causes the death of another person. A person act’s recklessly with respect to the attendant circumstances or a result of his her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. Ark.Code Ann. § 5-2-202(3)(A) (Repl.2013). The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Id. § 5-2-202(3)(B). In support of his request for the manslaughter instruction, appellant argued at trial that testimony demonstrated that he chased P. J. to “scare him” and that his intent was to “beat up” P.J., not to kill him. The State argued that, although there was testimony that some of the “girls in the car may have wanted [P.J.’s] ass whipped,” there was no testimony whatsoever that-appellant intended only to engage in a ñstfíght with P. J.
In this case, the jury was presented with evidence that appellant chased P.J., blocked PJ.’s vehicle with his vehicle, and ran up to P.J.’s car, shooting once into the hood of the car and a second time through the windshield of the car, killing P.J. We agree with counsel’s contention that the circuit court did not err in refusing to instruct the jury on reckless manslaughter. Because there was no rational basis for giving an instruction for reckless manslaughter, we affirm the circuit court’s ruling.
|SC. Motion in Limine
Counsel contends that the circuit court did not err in overruling appellant’s objection to the State’s motion in limine. Before trial, the State filed a motion in limine to exclude evidence of P.J.’s past involvement in drug transactions and his reputation as a drug dealer. After hearing arguments from the parties, the circuit court granted the State’s motion in limine with respect to
the dates prior to the date in question or dates, with other people even on the same date if they didn’t involve these parties. But the circumstances surrounding the factual basis, the facts concerning how this thing came about, or this case came about, would certainly be part of this ease. But prior days or prior events with separate parties that are not otherwise involved in this case would be irrelevant.
“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). Evidencé which is not relevant is not admissible. Ark. R. Evid. 402. The decision to admit or excludé evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion or absent a showing of prejudice. Bruner v. State, 2013 Ark. 68, at 11, 426 S.W.3d 386, 393.
Here, the circuit court allowed extensive testimony about the drug deal between Wild I9BÜI and Frank. The jury was made aware of the facts and circumstances leading up to P.J.’s death. Specifically, the jury learned that P.J.’s death resulted from a drug deal gone bad between Frank and Wild Bill. We hold that the circuit court did not abuse its discretion in excluding evidence about P.J.’s past involvement in drug transactions and his reputation as a drug dealer.
D. Other Adverse Rulings
Counsel has addressed the remaining adverse rulings. Having reviewed the record and briefs, we agree with counsel that none of the rulings present a meritorious ground for reversal.
III. Pro Se Points
A.' Directed Verdict — Intent
Appellant contends that .the circuit court erred in denying his motion for directed verdict on the ¡charge of first-degiee murder because the State failed to establish that he possessed- the. intent -to purposely cause the death of another. The State contends, that appellant’s pro se sufficiency challenge is barred because appellant has. changed-the nature of [ mhis sufficiency argument on appeal. We agree.. At trial, appellant argued that there was no credible evidence presented in the State’s case for the charges to be maintained. On appeal, however, appellant contends that the State failed to prove that he intended to purposely cause.the death of P. J. A party is not permitted to change the scope and nature of a direeted-verdict motion on appeal. See Lamb v. State, 372 Ark. 277, 279, 275 S.W.3d 144, 146 (2008).
B, Jury Instruction — Extreme-Emotional-Disturbance Manslaughter
Appellant contends that the circuit court erred in refusing, to instruct the jury on extreme-emotional-disturbance manslaughter. At trial, appellant requested jury instructions for the lesser-included offenses of second-degree murder and reckless manslaughter. Appellant did not, however, request an instruction for extreme-emotional-disturbance - manslaughter. Consequently, we do not address appellant’s contention on appeal. See, e.g,, White v. State, 370 Ark. 284, 294, 259 S.W.3d 410, 417 (2007) (stating that appellant’s-failiire to request a jury instruction at trial precludes our review because we do. not address issues raised for the first time on appeal).
IV. Rule 4-3(i)
Pursuant to Arkansas Supreme Court Rule 4 — 3(i), the record has been reviewed for all objections, motions, and requests that were decided adversely to appellant, and no | ^prejudicial error has been found.
Affirmed; motion to withdraw granted.
Baker and Hart, JJ., dissent.
. Starling was sentenced to a term of life imprisonment for first-degree murder and a term of life imprisonment for terroristic act, to be served concurrently. Starling’s firearm enhancements were to be served consecutively to his life sentences but concurrent to each other.
. 1 Counsel asserts that, because the circuit court instructed the jury on first-degree murder and second-degree murder, and appellant was convicted of first-degree murder, then any error committed by the circuit court in declining to instruct the jury on the lesser-included offense of reckless manslaughter is cured by the skip rule. See Easter v. State, 306 Ark. 615, 620, 816 S.W.2d 602, 605 (1991) ("When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.”). Because we hold that the circuit court did not err in refusing to instruct the jury on reckless manslaughter, we need not engage in a skip-rule analysis. Here, there is no error to cure.
. Over defense counsel’s hearsay objections, the circuit court allowed Satterwhite’s testimony about her conversations with Wild Bill and Frank. Because this testimony was not offered for the truth of the matter asserted, the circuit court did not err in overruling the objections.
We agree with counsel’s assertion that we do not consider appellant's pro se posttrial motions because they are not preserved or our review. Appellant filed the pro se motions after the notice of appeal had been filed, and the circuit court did not rule on the motions. Even assuming the pro se motions were deemed denied by operation of law, see Ark. R.App. P.-Crim. 2(b)(1), appellant did not file an amended notice of appeal-to appeal the denial of those motions, see Ark. R.App. P.—Crim. 2(b)(2),
. A person commits manslaughter if the person causes the death of another person under - circumstances that would be murder, except that he or she causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. Ark. Code Ann. § 5—10—104(a)(1)(A). The reasonableness of the excuse is determined from the viewpoint of a person in the actor's situation under the circumstances as the actor believed them to be. Id. § 5-10-104(a)(l)(B). | [
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BRADLEY D. Jesson, Chief Justice.
The appellee, John L. Johnson Jr., was charged by misdemeanor information in circuit court with driving while intoxicated, first offense, operating a motor vehicle without a driver’s license, making an illegal turn, disorderly conduct, and no proof of liability insurance. At trial, the State elected to proceed only on the DWI charge. The case never reached the jury because, at the close of the State’s case, the trial court directed a verdict in appellee’s favor. The State has filed this appeal, asserting that the trial court erred in granting the directed verdict and in disallowing its proof of appellee’s intoxication by ingestion of a controlled substance.
We must first decide whether this appeal is properly before us. The State claims that the correction of the trial court’s error in this case is essential to the administration of the criminal law. See Ark. R. App. P. — Crim. 3(c). Because we conclude that the trial court erroneously weighed the credibility of the State’s evidence instead of determining the sufficiency of the evidence and refused to consider intoxication under Ark. Code Ann. § 5-65-103(a) (Repl. 1993), we hold that the State is permitted to appeal this case. See State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992); State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929).
The State’s case against appellee included the following evidence. At approximately midnight on August 25, 1994, appellee was stopped by Russellville Police Patrolman William Ridenhour for failing to activate his turn signal when making a right turn. Ridenhour approached appellee’s vehicle and observed that he was eating a taco from Taco Bell. When appellee finished the taco and began talking, Ridenhour noticed that his speech was slurred. The officer told appellee that he thought he had been drinking, to which appellee replied that he had been on the lake and had “had a few.” Ridenhour further observed that appellee’s eyes were extremely red and glossy. Officer Stewart Condley, who was riding with Ridenhour, also noticed appellee’s slurred speech and glassy red eyes.
Ridenhour asked appellee to exit the vehicle for purposes of conducting field sobriety tests. Appellee, a local attorney, explained that he was taking his passenger and legal secretary, Terri Nail, to her apartment. As appellee became argumentative, Ridenhour smelled an odor of an intoxicant on his person. He began conducting the horizontal gaze and nystagmus test, but appellee refused to cooperate. The officer placed appellee under arrest and transported him to a local hospital, where he submitted to a blood test. While the result of the test indicated the presence of .06 percent of alcohol in appellee’s blood, both officers testified that there was “no doubt” in their minds that appellee was intoxicated.
In granting appellee’s motion for directed verdict at the close of the State’s case, the trial court commented that appellee’s .06 percent blood-alcohol content was “terribly low” and observed that there were no field sobriety tests given at the time of the stop. While the trial court made mention of the “subjective” observations of the officers, it concluded that the low blood-alcohol level and the absence of “objective” tests mandated granting a directed verdict in appellee’s favor.
We have reviewed the distinction between the credibility and sufficiency of the evidence as follows:
[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.”
State v. Long, 311 Ark. at 250-251, 844 S.W.2d at 304; citing Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (quoting Tibbs v. State, 397 So.2d 1120 (1981)). Stated another way, a directed verdict is given in cases only where no issue of fact exists. Smith v. State, 302 Ark. 459, 790 S.W.2d 432 (1990).
Officers Ridenhour and Condley both testified there was no doubt in their minds that appellee was intoxicated. Opinion testimony regarding intoxication is admissible. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The officers further observed appellee’s slurred speech and red and glassy eyes. Particularly, Officer Ridenhour smelled an odor of an intoxicant on appellee, who admitted to him that he had “had a few.” These observations constitute competent evidence supporting the DWI charge. Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992). While the trial court emphasized that the officers’ observations were “subjective” evidence, it was the province of the jury to determine the weight and credibility of this evidence. State v. Long, supra; Jones v. State, 305 Ark. 95, 805 S.W.2d 642 (1991).
The trial court was also concerned with the fact that appellee’s blood-alcohol content was .06 percent. However, we have said that a DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996). This is so because our legislature has provided that there are two different ways of proving a DWI violation. See Ark. Code Ann. § 5-65-103 (a) and (b). A person can be found guilty of the offense if he or she (1) operates a motor vehicle while intoxicated; or (2) operates a motor vehicle while having a blood-alcohol content of .10 percent or more. Tauber v. State, supra. Moreover, Ark. Code Ann. § 5-65-206(a)(2) (Repl. 1993) provides that if there was at the time in excess of one-twentieth of one percent (.05%) but less than one-tenth of one-percent (.10%) by weight of alcohol in the defendant’s blood, this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. In describing appellee’s .06 percent blood-alcohol content as “terribly low,” the trial court again invaded the jury’s province, as the jury should have been permitted to consider this evidence. In light of this competent evidence and the testimony of the officers, we cannot agree that there was no issue of fact for the jury to decide. Under these circumstances, we hold that the trial court erred in directing a verdict in appellee’s favor.
The State’s remaining assignment of error pertains to the trial court’s pretrial ruling that the State would not be allowed to offer evidence that appellee’s intoxication occurred as a result of his ingesting a controlled substance. Citing A.R.E. 103 (a)(2), the appellee maintains that this issue is not preserved because the State failed to proffer the evidence it claims was erroneously excluded. However, we have held that A.R.E. 103(a)(2) does not apply to hearings limited to the construction of statutes as a matter of law. State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995). Because the trial court ruled as a matter of law that evidence of a controlled substance could not be admitted to prove DWI unless the information specifically alleged intoxication by a controlled substance, we conclude that no proffer was required.
In this case, the information charged appellee with DWI by specifying the statute number, Ark. Code Ann. § 5-65-103, and stating as follows:
The defendant on or about the 25TH day of August 1994 in the City of Russellville, Arkansas, did
I.
knowingly, willingly and unlawfully, operate a motor vehicle while intoxicated and/or operate a motor vehicle when there was 0.10% or more by weight of alcohol in his blood as determined by a chemical test on his blood, urine, breath or other bodily substance in the second offense, the same constituting a misdemeanor offense, against the peace and dignity of the State of Arkansas.
An information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). Though the information in appellee’s case did not specify whether he was charged under subsection (a) or (b) of § 5-65-103, we have held that a charge of “DWI one” is sufficient for a conviction under either subsection, even though the evidentiary requirements of the subsections are different. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). The term “intoxicated” as used in the DWI offense includes being “influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof.” See Ark. Code Ann. § 5-65-102 (l)(Repl. 1994). See also Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994) (“A person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in § 5-65-102(1) constitutes use of an ‘intoxicant’ and that being in control of a motor vehicle shortly thereafter may violate the law.”). Moreover, appellee did not request a bill of particulars. Because we conclude that the allegations in the information were sufficient to apprise appellee of the crime with which he was charged, we hold that the trial court erred in ruling as a matter of law that the State could not produce evidence of intoxication by ingestion of a controlled substance unless the information specifically alleged this method of intoxication.
The State asks that we declare error of the trial court, thus acknowledging that, due to the trial court’s directing a verdict in appellee’s favor, his double-jeopardy rights prevent a retrial. See State v. Long, supra.
Error declared.
NEWBERN, J., not participating. | [
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Andree Layton Roaf, Justice.
This case involves a claim for the tort of outrage brought by Appellant Mary Hollomon against her former employer, Dr. W. R. Keadle. Hollomon alleges that Keadle repeatedly insulted her and subjected her to veiled threats of bodily harm. The trial court found that Hollomon’s allegations were insufficient as a matter of law to state a claim for the tort of outrage, and further, that the First Amendment protected Keadle’s statements; the trial court accordingly granted Keadle’s motion for summary judgment. We affirm.
Mary Hollomon worked for Dr. Keadle, a sixty-eight-year-old physician, for approximately two years before she voluntarily left his employ. Hollomon alleges that during her employment, Keadle repeatedly cursed her and referred to her with offensive terms, such as “white nigger,” “slut,” “whore,” and “the ignorance of Glen-wood, Arkansas.” Hollomon contends that Keadle frequently made, in her presence, degrading remarks about women such as: “women should be at home, not working, and if they are out there working they are whores and prostitutes...only whores and prostitutes work” and “any time a woman wears rings [other than wedding rings], she is a whore and a slut.” In addition, Hollomon claims that Keadle frequently directed profanity at her in front of patients and other employees. In her deposition, Hollomon stated that she became aware that Keadle was a “grouch” by the second day of her employment with him and that he constandy yelled and cursed and used the “F” word almost every day. She stated that he cursed and belittled his wife and other women in his office.
According to Hollomon’s deposition, Keadle also told her that he had connections with the mob in California and could pay one of his schizophrenic patients $500.00 to “take care of” anyone he chose. As an example of these “connections,” Hollomon stated that Keadle told her that one of his former female employees “supposedly” died in an automobile accident in California. Finally, Hollo-mon states that Keadle told her that he carried a gun and that he had recentiy pulled the gun on a patient who angered him. Hollo-mon asserts that Keadle told her these stories to intimidate her and to suggest that he would have her killed if she quit or caused trouble.
Hollomon contends that she did not resign earlier because she feared Keadle would have her killed. In addition, Hollomon asserts that her status as a single parent and her dire financial condition, of which Keadle was aware, prevented her from leaving the job. Hol-lomon claims that Keadle’s comments caused her stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment. In her deposition, Hollomon stated that she told Jim Buder, a counselor, about the constant ridicule by Keadle but admitted that she did not go to his office or seek counseling services from him. She further stated that Keadle’s cursing upset her stomach and that Keadle and a Dr. Jansen gave her medication for her stomach problems. After two years and three months of working for Keadle, Hollomon alleges that she resigned because of his cursing. In his deposition, Keadle denied all of Hollomon’s allegations.
On her first argument for reversal, Hollomon claims that the trial judge erred in granting summary judgment because genuine issues of material fact existed concerning whether or not Dr. Keadle made the alleged statements. Hollomon correctly argues that summary judgment is only appropriate when no issue of material fact exists, and the movant is entitled to judgment as a matter of law. See, Ark. R. Civ. P. 56 (c); Browning v. Browning, 319 Ark. 205, 890 S.W.2d 273 (1995). However, this court must first decide whether Hollomon’s accusations, taken as true, state a claim for the tort of outrage. Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993). As we explained in Rainey, if the appellant cannot state a claim for outrage then any unresolved factual issues are simply irrelevant. Id.
Hollomon next asserts that the trial court erred by holding that the facts she alleged did not support a cause of action for the tort of outrage or intentional infliction of emotional distress. We have said that to succeed on a tort-of-outrage claim, the plaintiff must prove: 1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; 2) the conduct was extreme and outrageous, and was utterly intolerable in a civilized community; 3) the defendant’s conduct was the cause of the plaintiff’s distress; and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996); Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).
Hollomon relies primarily on the case of Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984) to support her argument that the trial court erred when it found that her allegations, even if true, did not state a claim for the tort of outrage. Tandy also involved an action by an employee against an employer. Although this court reversed a jury verdict in favor of the plaintifTemployee based on an improper jury instruction and certain comments made by the trial court, we found that the evidence presented by Bone was sufficient to allow a jury to determine whether his employer was guilty of outrageous conduct that was the proximate cause of his emotional distress.
However, in Tandy, we stated that:
[w]e have taken a somewhat strict approach to this cause of action. Recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. For example, abrasive profanity alone is not sufficient reason to have a cause of action.
Tandy, 283 Ark. at 405, 678 S.W.2d at 315.
Bone was the manager of a Radio Shack store who was questioned by his employer in the course of an investigation into thefts which took place at his store. Bone testified that he was questioned throughout an entire day, and was cursed and threatened by Tandy’s security personnel. He further alleged that he was twice refused permission to take a tranquilizer which had been prescribed to him by a psychiatrist for three years. It was the latter testimony by Bone which concerned this court, and we stated that:
The conduct on the part of the employer that does give us difficulty is the undisputed evidence that Bone was obviously undergoing a good deal of stress, requested his Valium or medication, and was denied that privilege. The employer was on notice at that point that Bone may not have been a person of ordinary temperament, able to endure a stressful situation such as he was placed in without injury... We emphasize that the notice to the employer of Bone’s condition is the only basis for a jury question of extreme outrage.
Tandy, 283 Ark. at 405-408, 678 S.W.2d at 316. (Emphasis added.)
Because of the holding in Tandy, we do not reach the question of whether Keadle’s conduct was “extreme and outrageous” and “utterly intolerable in a civilized community,” that is, whether “the recitation of the facts to an average member of their community would arouse his resentment against the actor and lead him to exclaim,’ outrageous.’ ” See Restatement (Second) of Torts § 46, cmt. d.
We conclude that Hollomon, unlike Bone, has failed to establish that her employer was made aware that she was “not a person of ordinary temperament” or that she was “peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity.” See Restatement of Torts (Second) § 46, cmt. f. In her brief filed in response to Keadle’s motion for summary judgment, Hollomon asserted that she was “assured that Keadle’s actions would cease.” She does not state in her abstract who assured her of this or whether she notified Keadle of any mental or physical condition which would make her peculiarly susceptible to stress. Although she claims that her status as a single parent caused her to remain in Keadle’s employment for over two years, we cannot say that this status is in any respect unique, or that it constitutes a physical or mental condition necessary under our holding in Tandy, supra.
We also cannot say that Hollomon has alleged that Keadle had notice of the alleged severity of the emotional distress. In her deposition, Hollomon stated that Keadle gave her Zantac for her stomach and that she also obtained medication from Dr. Jansen for her upset stomach. However, even if Hollomon’s general assertions of stomach problems, loss of sleep, anxiety, and embarrassment can be said to constitute distress “so severe that no reasonable man could be expected to endure it,” we cannot determine from her abstract that she ever made Keadle aware that he had inflicted such distress upon her. In fact, Hollomon stated that Keadle on occasion urged her to “[T]ake up for your God damn self!” but said that she was reluctant to let him know how upset she was with him and that she was afraid to voice her opinion to him because of her lack of self-esteem. She further stated that she filed the lawsuit against him because “I’m tired of him belittling women.” As to her allegations that Keadle made veiled threats to have her “taken care of,” Hollomon admitted that Keadle never directly threatened her and stated simply that she “didn’t put anything past the man.”
Keadle argues in response that even if Hollomon’s assertions are true, this court has established strict requirements for the tort of outrage, particularly in the context of employment; he is correct. We have considered this issue a number of times in cases of employee discharge; however, only in Tandy, supra, have we held that an employee has met the standard for proving the tort of outrage in such a case.
In City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994), we reversed a jury verdict for unlawful discharge and for the tort of outrage. Morse was discharged as a policeman after he was involved in an accident during a high speed chase. Morse alleged in his outrage claim that the chief of police, during a fourteen-month employer-employee relationship, showed anger towards him, cursed him, asked whether he was paying his creditors and whether he held parties at which he served alcohol to minors, chastised him about drinking soft drinks in his patrol car, accused him of lying and of filing a false accident report, and told him that sheriffs in three counties would arrest him for making a false report. Morse claimed that he was constantly on edge during his employment. In reversing and dismissing Morse’s outrage claim, we said:
We have consistendy taken a narrow view in recognizing claims for the tort of outrage that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will ffequendy feel considerable insult when discharged.
Green Forest, 316 Ark. at 542, 873 S.W.2d at 156.
In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), we upheld the dismissal of an outrage claim in an employee-discharge context where the employee alleged that he was wrongfully terminated after his shift leader had hit him during a dispute, stating:
The type of conduct that meets the standard for an outrage cause of action must be determined on a case-by-case basis. We have taken a strict view in recognizing such a claim, especially in employment relationship situations. The extreme and outrageous character of the conduct may arise from the employer’s knowledge that the employee is peculiarly susceptible to emotional distress by reason of some physical or mental peculiarity. The conduct may become outrageous if the employer continues it in the face of such knowledge, where it would not be so if he did not know. The fact that an employer continues unjustifiable conduct over a long period of time can be an important factor weighing in favor of a finding that the employer’s conduct towards an employee was outrageous.
Smith, 304 Ark. at 602, 804 S.W.2d at 686. (Citations omitted.)
Likewise, in Sterling v. Upjohn Healthcare Servs. Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), we upheld the granting of summary judgment in favor of the employer where an employee alleged that his supervisor took a dislike to him, undermined him in various ways, falsely told other employees that he was always drunk, falsely accused him of lying on his job application, cursed him, and became violent when discussing him with other employees. See also Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988); Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982).
Although Hollomon was not discharged, nor does she claim that she was constructively discharged, we have consistently stated that we will take a strict view in recognizing a claim for the tort of outrage in employment-relationship situations. The rationale for doing so holds true whether the employee bringing such a claim has been discharged or resigns. Here, Hollomon knew by the second day of her employment with Keadle that he was a singularly unpleasant man given to constandy yelling and cursing, yet she remained in his employment for more than two years. In Tandy, supra, we said that “abrasive profanity alone is not sufficient reason to bring a cause of action.” Absent a showing that the employer had knowledge that the employee was “peculiarly susceptible to emotional distress by reasons of some physical or mental condition or peculiarity” and “proceeds in the face of such knowledge,” we do not depart from that position. See Restatement of Torts (Second) §46.
Because we affirm the trial court’s finding that Hollomon’s allegations were insufficient as a matter of law to state a claim for the tort of outrage, we do not reach the issue of whether Keadle’s speech was protected by the First Amendment.
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David Newbern, Justice.
Jacqueline Sims, a Minnesota resident, executed a “Uniform Support Petition” there. She claimed that the appellant, Charles Davis, was the father of her child, Jeremy Arnett, and sought $250 per month in support payments and “reimbursement” in the amount of $3850. Mr. Davis resides in Helena. In accordance with Minnesota Uniform Reciprocal Enforcement of Support Act provisions, the petition was forwarded by a Minnesota district court to the appellee, Arkansas Child Support Enforcement Unit, which filed paternity and support claims, against Mr. Davis in the Phillips County Chancery Court.
Mr. Davis submitted to a blood (DNA) test in which the likelihood of his being the father of Jeremy Arnett was determined to be 99.86% when compared with “an untested, unrelated man of the North American Black population.” Pursuant to the Uniform Interstate Family Support Act (UIFSA), Ark. Code Ann. §§ 9-17-101 through 9-17-902 (Repl. 1993), a hearing was held on the petition. See § 9-17-401 (c) which gives an alleged support obligor the right to “notice and opportunity to be heard.”
Mr. Davis objected to the proceeding on the basis that the Court lacked jurisdiction, and he declined to present evidence. After the Court reached its decision finding Mr. Davis to be the father of the child and entering its order of support, Mr. Davis filed a motion challenging the constitutionality of the proceedings. The Court entered a further order overruling the motion and rejecting the constitutional arguments made by Mr. Davis. We affirm the decision.
i. Jurisdiction
Mr. Davis makes no argument which would seem to challenge the Chancellor’s jurisdiction of the subject matter, so we assume his argument is directed to jurisdiction of the person. He recites that Ms. Sims is not a resident of Phillips County and cites Dobson v. State, 69 Ark. 376, 63 S.W. 796 (1901). The Dobson case is completely inapposite, as the issue there was whether “the county judge in vacation, as distinguished from the county court,” had the right to hear and determine “bastardy cases.” The judgment against the putative father was affirmed, upholding statutory language allowing the judge to hear such cases “in vacation.” Mr. Davis does not contend that his residence is other than Phillips County, and we have no reason to suspect the Court lacked jurisdiction of him.
2. Right of confrontation
Mr. Davis points out that the evidence against him consisted of two affidavits, that of the expert who conducted the blood test and that of Ms. Sims. He contends he was denied his right, accorded by the Sixth Amendment to the Constitution of the United States, to confront the affiants. His argument is that the affidavits of those persons should not have been introduced into evidence and considered by the Court. He is aware that the Sixth Amendment is, by its language, limited to “criminal prosecutions,” but he argues that the proceeding against him is “quasi-criminal,” and he contends he is thus entitled to the same confrontation right as a criminal defendant.
The Dobson case is ancient and does not stand for the proposition for which it is cited, but it may display the manner in which Mr. Davis has been misled into this argument. In 1901 we used terminology like “complaint charging [a] ... person with being the father of a bastard child” and “conviction” of being the father of a “bastard child.” The terminology was suggestive of criminal prosecution. Mr. Davis supports his argument with references to Ark. Code Ann. §§ 9-10-110 and 9-17-316 (Repl. 1993), contending that, like a criminal, he faces incarceration if he disobeys the support order.
We find nothing in § 9-17-316 suggesting incarceration, but we do find it in § 9-10-110(b), which would allow the court to commit the “accused person to jail until the lying-in expenses are paid with all costs.” The predicate for such an action, however, according to § 9-10-110(a), is a judgment for lying-in costs “if required or claimed.” Here we have no evidence that there was any such claim or judgment, and there has been no attempt to hold that Mr. Davis has refhsed to pay any lying-in cost.
In Connecticut there were laws similar to § 9-10-110 and language in the paternity law such as that alluded to above from our Dobson decision making a paternity action seem like a criminal prosecution. The Supreme Court, in Little v. Streater, 452 U.S. 1 (1981), then referred to the Connecticut law as having “quasi-criminal” overtones, despite the State’s characterization of it as “civil.” The Supreme Court held that refusal of the State of Connecticut to pay the cost of blood-grouping tests sought by an indigent putative father denied his right to due process of law. The decision was a straightforward application of the Due Process Clause of the Fourteenth Amendment, applying the general criteria set out in Mathews v. Eldridge, 424 U.S. 319 (1976). It did not even suggest that the defendant was entitled to all or any of the procedural safeguards to which criminal defendants are especially entitled.
In Connecticut, the law was that a woman’s testimony that a man was the father of her child established a prima fade case, and in order to prevail, the putative father was required to produce evidence other than, or in addition to, his own testimony to the contrary. The Supreme Court based its decision upon the eviden-tiary hurdle faced by a Connecticut paternity defendant and the need of such a defendant to have access to evidence other than his own testimony to show the accusations were untrue. The Supreme Court limited its decision to the “specific circumstances” extant in Connecticut.
Mr. Davis’s argument ignores the statutory provision which would have entitled him to have present the expert who conducted the blood test upon filing of notice of such a request thirty days in advance of the trial. § 9-10-108(a)(3)(A). He states only that the statute would have required him to post a bond to pay the costs of the personal appearance of the expert. In the Court’s first order of judgment it is specifically recited that the bond requirement was struck by the Court and that only notice was required. Mr. Davis does not contest that statement, and there is no evidence that any such notice was given.
Also ignored is § 9-17-316(f) which provides:
In a proceeding under this chapter, a tribunal of this state may permit a party or witness residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of this state shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony.
Mr. Davis apparendy made no attempt to “confront” Ms. Sims by the method provided in the statute.
In these circumstances, where there has been (1) no attempt to utilize the provisions which were aimed by the drafters of the UIFSA at providing the best evidentiary safeguards permitted by the circumstances of interstate support litigation, (2) no attempt to defend due to a misguided conclusion concerning jurisdiction, and (3) no notice given to the Attorney General of the claimed unconstitutionality of the statute, see Ark. R. Civ. P. 24(c); Ark. Code Ann. § 16-111-106(b) (1987); Arkansas Dept. of Human Serv. v. Heath, 307 Ark. 147, 817 S.W.2d 885 (1991), we decline to give further consideration to the constitutional arguments made belatedly to the Chancellor and in this appeal.
Affirmed.
Dudley, Glaze, and Corbin, JJ., not participating.
Special Justices Claibourne W. Patty, Jr., LeRoy Autrey, and JAY Shell join in the opinion. | [
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Bradley D. JESSON, Chief Justice.
On October 31, 1992, the partially nude body of Christopher Lyle Bailey, a.k.a. Jay Smith, was found face down in a ditch just off Highway 189 in Ashley County. A piece of paper bearing the name and telephone number of one of appellant Larry Rayford’s former girlfriends was discovered in the pocket of the victim’s jeans, which were positioned around his ankles. Rayford was later arrested and convicted of capital murder and sentenced to life without parole. His sole argument for reversal is that the trial court erred in denying his motion for new trial on the basis that the State had failed to abide by the rules of discovery. We affirm.
Because Rayford does not challenge the sufficiency of the evidence, it is only necessary for us to recite the facts relevant to his motion for new trial. Rayford initially denied any involvement in the killing. He later admitted to causing the victim’s death, but gave several conflicting statements to police regarding how and where the shooting took place. He gave two, somewhat conflicting statements to Captain Charles Cater of the Monticello Police Department and Investigator Garland McAnally of the Arkansas State Police that he had shot the victim in Ashley County after the victim had made unwanted sexual advances toward him. He later changed his story, testifying at a pretrial hearing that he had accidentally shot the victim in Drew County after he and the victim had been “fumbling around” with guns.
On December 28, 1993, the trial judge informed defense counsel that he had received a letter from Huey Zane Brooks, a fellow inmate of Rayford’s at the Drew County Jail. The letter related that Rayford had been bragging about killing a man. The trial judge gave a copy of Brooks’s letter to Rayford’s attorney and cautioned him to be ready for Brooks’s testimony, which, if relevant and material, would not be limited to the contents of his letter. The following day and approximately two weeks prior to Rayford’s trial, the prosecutor informed Rayford’s counsel that he intended to call Brooks as a witness.
On the morning of Rayford’s January 18, 1994, trial, the prosecutor met with Brooks at the jail. According to Brooks, Rayford admitted that he and the victim had had words, that he had offered the victim some marijuana and a car ride, and that he had taken the victim out of Monticello, shot him, and dumped the body in some water. The prosecutor delivered a written summary of Brooks’s verbal statement to defense counsel’s office, which was located across the street from the jail. When the prosecutor referred to Brooks’s anticipated testimony during his opening statement, Rayford’s counsel objected on the basis that the State was proposing to offer a different account of Rayford’s statement to Brooks than that which was previously disclosed in Brooks’s letter. Following the trial judge’s overruling of the objection, defense counsel stated that “[N]o harm’s done.”
When the State called Brooks as a witness, Rayford renewed his objection made during the State’s opening statement, adding that he had not received the prosecutor’s note in time for him to adequately prepare for trial. While Rayford’s motion for new trial indicates to the contrary, defense counsel told the trial judge that he had spoken to Brooks, who had told him that Rayford’s statement was made in the presence of other inmates. Brooks was permitted to testify, and, after the State rested, the trial judge offered an early adjournment so that defense counsel could interview the other inmates. During his case-in-chief, Rayford presented the testimony of inmate Ricky Joe Gray, who disputed Brooks’s testimony.
Rule 17.1 (a) (ii) of the Arkansas Rules of Criminal Procedure mandates that the prosecutor disclose, upon timely request, “any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.” Rule 19.2 imposes a continuing duty on the prosecutor to disclose this information. In the event of noncompliance, Rule 19.7 allows the trial judge to order the undisclosed evidence excluded, grant a continuance, or enter such an order as he or she deems proper under the circumstances. The key in determining whether a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995).
When examining the facts in this case, we disagree with Rayford’s contention that they demonstrate a violation of the rules of discovery, as the trial judge went to great lengths to insure their compliance. The trial judge provided Rayford with a copy of Brooks’s letter and expressly warned defense counsel that he “needed to be ready” for Brooks’s testimony that Rayford had been bragging about killing a man. At this point, Rayford should have been prepared for the possibility that Brooks would testify. See Ferrell v. State, 325 Ark. 455, 929 S.W. 2d 697 (1996). The day after defense counsel received Brooks’s letter, the prosecutor announced that he would call Brooks as a witness. Once Rayford knew that Brooks would be a witness, his counsel had the right and duty, time permitting, to conduct his own investigation, interview Brooks, and perhaps discover what Brooks would say at trial. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S. 835 (1983). As to the verbal statement the prosecutor obtained from Brooks on the morning of trial, the record indicates that he delivered a written summary of Brooks’s statement to defense counsel’s office before trial. As the prosecutor and defense counsel found out about Brooks statement at approximately the same time, and there is no evidence that the prosecutor deliberately avoided obtaining this information in order to have it presented at trial, we must conclude that the prosecutor satisfied his continuing duty to disclose.
Even if we were to conclude that the State had improperly failed to provide Brooks’s statement to the defense, we would affirm due to Rayford’s failure to demonstrate prejudice. While appellant argues that the State had no proof of premeditation and deliberation in the absence of Brooks’s testimony, we disagree. Dr. Frank Peretti of the State Crime Lab performed the autopsy on the victim and testified at trial that the victim’s death was caused by a shotgun wound to the back and blunt-force head injuries. He observed at least six blunt-force head injuries and bruises and scrapes on the victim’s face, indicating that he had been in an altercation prior to his death. The victim had black eyes that were the probable results of a fist fight. Dr. Peretti further observed some bruises on the victim’s right arm and lower chest that were consis tent with being hit with the stock of a gun. Thus, the jury could have inferred premeditated and deliberate murder from the act itself, as they heard Dr. Peretti’s testimony regarding the the nature and number of wounds to the victim’s body, and were able to view photographs of these injuries as well. In light of this evidence and Rayford’s conflicting accounts of how the shooting took place, the jury could have easily inferred, in the absence of Brooks’s testimony, that Rayford’s killing of the victim was a premeditated and deliberate act.
We also think it significant that Rayford’s counsel commented, after his objection during opening statements, that no harm was done by the State’s reference to Brooks’s anticipated testimony. Indeed, the record shows that the trial judge gave Rayford time to interview the other inmates and that Rayford was able to present the testimony of inmate Ricky Joe Gray during his case. As Gray disputed Brooks’s testimony, the similar testimony offered in the new-trial affidavits of inmates Dennis Caldwell, James Green, and Tommy Green, would be cumulative to Gray’s testimony. As such, Rayford is unable to demonstrate that he was prejudiced by the trial court’s denial of his motion for new trial.
We have reviewed the record pursuant to Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found that would warrant reversal.
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ROBERT H. Dudley, Justice.
Damien Echols and Jason Baldwin were convicted of the capital murders of Michael Moore, Christopher Byers, and Steve Branch. For each of the capital murders, appellant Echols was sentenced to death, and appellant Baldwin was sentenced to life imprisonment without parole. Both appellants appeal from their convictions. Echols separately appeals the death sentences imposed upon him. We affirm in full the judgments of conviction.
Michael, Christopher, and Steve were eight years old, in the second grade, in the same Cub Scout troop, and often played together in their West Memphis neighborhood. On the afternoon of May 5, 1993, after school, Michael and Steve were riding their bicycles while Chris was skateboarding. Deborah O’Tinger saw the three boys walking through her yard between 5:45 and 6:00 that afternoon. Her recollection was that they were pushing a bicycle. At about 6:00 p.m., Dana Moore, Michael’s mother, saw the three boys together. At that time Michael was riding his bicycle. Between 6:30 and 6:45 Brian Woody saw four boys going into some woods known as the Robin Hood woods. He noticed that two of the boys were pushing bicycles, one had a skateboard, and a fourth one was just walking behind them. Neither Michael, Christopher, nor Steve returned to their homes. Their parents called the police, and a search was begun.
The next morning, members of the Crittenden County Search and Rescue Unit discovered a tennis shoe floating in a ditch just north of Ten Mile Bayou. The Robin Hood woods drain into Ten Mile Bayou, and the members of the search unit knew the boys were last seen in that area. Detective Mike Allen walked along the ditch bank to the place where the tennis shoe had been found. He noticed that one area of the ditch bank was cleared of leaves, while the rest of the bank was covered with leaves and sticks. He described the cleared area on the bank as being “slick,” but having “scuffs” in the cleared-off area. He got into the water, reached down to get the shoe, and felt Michael Moore’s body. The corpses of Christopher Byers and Steve Branch were subsequently found about twenty-five feet downstream. Policeman John Moore, who was also there, said there was blood in the water, but none on the bank. Detective Bryn Ridge was also present and helped recover the boys’ bodies. He collected the victims’ clothes, three tennis shoes, and a Cub Scout cap that was floating in the water. He found a stick stuck in the mud that had one of the boy’s shirts wrapped around the end that was stuck down in the mud. He dislodged another stick as he was removing the corpse of Michael Moore.
All three corpses had their right hands tied to their right feet, and their left hands tied to their left feet. Black shoe laces and white shoe laces were used as ligatures. Michael Moore’s body had wounds to the neck, chest, and abdominal regions that appeared to have been caused by a serrated knife. There were abrasions over his scalp that could have been caused by a stick. Dr. Frank Peretti, a State medical examiner, testified that there was bruising and discoloring comparable to that frequently seen in children who are forced to perform oral sex. He testified that there were defensive wounds to the hands and arms. Moore’s anal orifice was dilated, and the rectal mucosa was reddened. Dr. Peretti testified this injury could have come from an object being placed in the anus. Finally, Dr. Peretti testified that there was evidence that Moore was still alive when he was in the water, as there was evidence of drowning.
Steve Branch’s corpse had head injuries, chest injuries, genital-anal injuries, lower extremity injuries, upper extremity injuries, and back injuries. The body had multiple, irregular, gouging wounds, which indicated that he was moving when he was stabbed. The anus was dilated. Penile injuries indicated that oral sex had been performed on him. There was also evidence that he, too, had drowned.
Christopher Byers’s corpse also had injuries indicating that he had been forced to perform oral sex. His head had scratches, abrasions, and a punched-out area on the skin, and one eyelid had a contusion. The back of the neck had a scrape. The inner thighs had diagonal cuts on them. The back of the skull had been struck with a stick-like, broomstick-size, object. The skin of the penis had been removed, and the scrotal sac and testes were missing. There were cuts around the anus, and the hemorrhaging from those cuts indicated he was still alive when they were made. Many of the cuts were made with a serrated blade knife. Byers did not drown; he bled to death.
The boys’ bicycles were found nearby.
On May 10, four days after the bodies were found, the police had not solved the cases. When Detective Bryn Ridge questioned Echols, he asked him how he thought the three victims died. Ridge’s description of Echols’s answer is abstracted as follows:
He stated that the boys probably died of mutilation, some guy had cut the bodies up, heard that they were in the water, they may have drowned. He said at least one was cut up more than the others. Purpose of the killing may have been to scare someone. He believed that it was only one person for fear of squealing by another involved.
At the time Echols made the statement, there was no public knowledge that one of the children had been mutilated more severely than the others.
On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told that all three engaged in cult-like activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself. The statements can be found in Misskelley v. State, 323 Ark. 449, 459-61, 915 S.W.2d 702, 707-08 (1996).
Misskelley, age seventeen, Echols, age nineteen, and Baldwin, age sixteen, were joindy charged with the capital murders of Moore, Byers, and Branch. Misskelley moved for a severance from Echols and Baldwin, and the trial court granted the severance. Misskelley was tried and convicted of first-degree murder in the death of Michael Moore, and second-degree murder in the deaths of Steve Branch and Christopher Byers. The judgments of conviction were affirmed. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Appellants Echols and Baldwin were joindy tried in this case. In the guilt-innocence phase of the trial, the jury found both Echols and Baldwin guilty of the capital murders of all three victims. In the penalty phase of the trial, the jury imposed death as the punishment for Echols and fixed life imprisonment without parole as the punishment for Baldwin. The trial court entered judgments of conviction that imposed the sentences set by the jury.
Echols’s and Baldwin’s arguments together contain forty-four points of appeal, and some of those points have subpoints. Some of the points of appeal are made jointly by both appellants, but many are individual arguments. For clarity, we group the arguments into seven general categories.
Sufficiency of the Evidence Arguments
Echols questions the sufficiency of the evidence to convict him of the three capital murders. In one of his arguments, he contends that for circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis, and cites as authority Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Before narrating the testimony of his guilt, we again emphasize, as we have often done, that although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMI Crim. 106, this is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without resorting to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but we, not having had the advantage of seeing and hearing the witnesses, are guided by the substantial evidence rule. Cassell, 273 Ark. at 62, 616 S.W.2d at 486-87.
Moreover, two witnesses testified that they overheard Echols state that he killed the three boys, and this was direct evidence. A confession is sufficient to sustain a conviction if it is accompanied by other proof that the offense was committed by someone. Ark. Code Ann. § 16-89-111 (1987); Leshe v. State, 304 Ark. 442, 304 S.W.2d 522 (1991).
The substantial evidence of Echols’s guilt is as follows. Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty. This evidence placed Echols in dirty clothes near the scene at a time close to the murders. Although not material to this point, other evidence established that Domini Teer might be confused with Baldwin as both had long hair and were of slight build.
Twelve-year-old Christy VanVickle testified that she heard Echols say he “killed the three boys.” Fifteen-year-old Jackie Med-ford testified that she heard Echols say, “I killed the three little boys and before I turn myself in, I’m going to kill two more, and I already have one of them picked out.” The testimony of these two independent witnesses was direct evidence of the statement by Echols. These witnesses were cross-examined by Echols’s counsel, and it was the jury’s province to weigh their credibility.
Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim’s clothes with clothing found in Echols’s home, and the fibers were microscopically similar.
Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin’s parents’ residence. The large knife had a serrated edge and had the words “Special Forces Survival Roman Numeral Two” on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.
Deanna Holcomb testified that she had seen Echols carrying a similar knife, except that the one she saw had a compass on the end. James Parker, owner of Parker’s Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin’s residence. The knife in the catalogue had a compass on the end, and it had the words “Special Forces Survival Roman Numeral Two” on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, heard ample evidence that Echols and Baldwin-spent much time together. Therefore, it could have reasonably concluded that Echols or Baldwin disposed of the knife in the lake.
The State’s theory of motive was that the killings were done in a satanic ritual. On cross-examination, Echols admitted that he has delved deeply into the occult and was familiar with its practices. Various items were found in his room, including a funeral register upon which he had drawn a pentagram and upside-down crosses and had copied spells. A journal was introduced, and it contained morbid images and references to dead children. Echols testified that he wore a long black trench coat even when it was warm. One witness had seen Echols, Baldwin, and Misskelley together six months before the murders, wearing long black coats and carrying long staffs. Dr. Peretti testified that some of the head wounds to the boys were consistent with the size of the two sticks that were recovered by the police.
Dr. Dale Griffis, an expert in occult killings, testified in the State’s case-in-chief that the killings had the “trappings of occultism.” He testified that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because “the younger, the more innocent, the better the life force.” He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witches’ number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the removal of Byers’s testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the “overkill” or multiple cuts could reflect occult overtones. Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those things synonymous with Christianity while the left side is that of the practitioners of the satanic occult. He testified that the clear place on the bank could be consistent with a ceremony. In sum, Dr. Griffis testified that there was significant evidence of satanic ritual killings.
Lisa Sakevicius, the criminalist who testified about the fibers, stated that Byers’s white polka-dot shirt had blue wax on it and that the wax was consistent with candle wax.
Detective Bryn Ridge testified that Echols said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. Ridge testified that when Echols made the statement, the fact that Christopher Byers had been mutilated more than the other two victims was not known by the public. The jury could have reasonably concluded that Echols would not have known this fact unless he were involved in some manner.
Echols took the witness stand, and his testimony contained additional evidence of guilt. When asked about his statement that one victim was mutilated more than the others, he said he learned the fact from newspaper accounts. His attorney showed him the newspaper articles about the murders. On cross-examination, Echols admitted that the articles did not mention one victim being mutilated more than the others, and he admitted that he did not read such a fact in a newspaper.
The foregoing, together, constitutes substantial evidence of the guilt of Damien Echols.
Jason Baldwin does not contend that there was insufficient evidence of his guilt. This is, perhaps, in part, because of the testimony of Michael Carson, who testified that he talked to Baldwin about the murders. Carson’s testimony, in pertinent part, was abstracted as follows:
I said, just between me and you, did you do it. I won’t say a word. He said yes and he went into detail about it. It was just me and Jason [Baldwin]. He told me he dismembered the kids, or I don’t know exacdy how many kids. He just said he dismembered them. He sucked the blood from the penis and scrotum and put the balls in his mouth.
Echols, in another argument relating to sufficiency of the evidence, contends that the verdict in the penalty phase was erroneous because the jury refused to find, as a mitigating circumstance, that he had no prior history of criminal activity. The jury was given AMI Crim. 1509, which included the mitigating circumstance of no significant prior history of criminal activity. It is important to note that this mitigating factor is set out as “no significant prior history of criminal activity,” and not “no significant prior history of prior convictions.” Ark. Code Ann. § 5-4-605(6) (Repl. 1993). The jury found that Baldwin had no significant history of criminal activity, but refused to make the same finding for Echols. This indicates that the jury carefully weighed the evidence and determined that Echols should not be credited with this mitigating factor. Even so, Echols contends the jury committed error in refusing to find that he had no significant prior history of criminal activity.
Echols and the State are in dispute about our law on this point, so we set out our applicable holdings. In Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), the mitigating circumstance sought by the defendant was mental illness. Bowen adduced strong evidence of mental illness, but the jury did not find that mental illness was a mitigating circumstance. We held that even if the evidence of the defendant’s mental illness was uncontradicted, the jury was not required to believe the defendant’s evidence and was not required to find such a mitigating circumstance. “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.” Id. at 497, 917 S.W.2d at 561.
In Hill v. State, 289 Ark. 387, 713 S.W.2d 223 (1986), we held that the jury did not have to find an eighteen year old’s youth was a mitigating factor. We quoted Giles v. State, 261 Ark. 413, 421, 549 S.W.2d 479, 483 (1977), and held that “[a]ny hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances.” Id. at 396, 713 S.W.2d at 237.
In Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), the jury found no mitigating circumstances. We held that the jury did not err in refusing to find that the defendant’s youth was a mitigating factor. However, we held that the jury erred in failing to find, as a mitigating factor, the fact that the defendant committed the crime while his capacity to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect. The record in Giles v. State was replete with evidence that the defendant was an imbecile and had organic brain syndrome “to the extent that the conclusion [was] inescapable that the capacity of Giles to conform his conduct to the requirements of law, when the capital felony was committed, was impaired as a result of mental defect.” Id. at 424, 549 S.W.2d at 485. We wrote, “The jury was not free to arbitrarily disregard reasonable testimony, where other testimony is supportive, rather than conflicting, and no questions of credibility are to be resolved, and it cannot be said that it is physically impossible or that there is no reasonable probability that it is true.” Id.
In summary, our holdings provide that a jury may generally refuse to believe a defendant’s mitigating evidence, but when there is no question about credibility and, when, in addition, objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. Here the jury was faced with neither indisputable credibility nor objective proof that made a reasonable conclusion inescapable. To the contrary, there was substantial evidence of Echols’s history of prior criminal activity.
Echols admitted on cross-examination in the penalty phase of the trial that he had an altercation with his father in which a knife was involved and the police were called. He admitted he was hospitalized that same day, and when his father came to the hospital, “I told him I would eat him alive.” He admitted he tried “to claw the eyes out” of a student. Perhaps the most compelling testimony on this point came from the cross-examination of Dr. James Moneypenny, a psychologist who testified for Echols. Dr. Moneypenny admitted that Echols had “an all powerful God-like image of himself” and that his parents were concerned with his satanism or devil worship. Dr. Moneypenny admitted that Echols’s medical records contained the following notations of statements by Echols:
I want to go where the monsters go. Pretty much hate the human race. Relates that he feels people are in two classes, sheep and wolves. Wolves eat sheep.
Echols explains that he obtains his powers by drinking blood of others. He typically drinks the blood of a sexual partner or a ruling partner. This is achieved by biting or cutting. It makes me feel like a god.
Echols describes drinking blood as giving him more power and strength ... He has also agreed to continue to discuss his issues with power and control as related to his practice of rituals.
I just put it all inside. Describes this as more than just anger like rage. Sometimes he does ‘blow up.’ Relates that when this happens, the only solution is to hurt someone. Echols reports being told in the hospital that he would be another Charles Manson or Ted Bundy. When questioned on his feelings he states, “I know I’m going to influence the world. People will remember me.”
The jury, having heard the foregoing, did not arbitrarily refuse to find that Echols had no significant history of criminal activity.
Severance Arguments
The Prosecuting Attorney jointly charged Misskelley, Echols, and Baldwin with the three capital murders. The trial court granted a severance to Misskelley, and he was tried and convicted. That left Echols and Baldwin jointly charged. Prior to their scheduled trial, both moved for severance, and each renewed the motions at various times during the trial, including at the close of the State’s case. Neither argued for a severance of the three capital murder charges; rather, each argued that he should be granted a separate trial from the other. The trial court denied all of the motions. Both Echols and Baldwin assign as error the trial court’s ridings denying them separate trials.
Joinder and severance procedure is governed by Ark. R. Crim. P. Article VI. These rules are calculated to promote the expeditious disposition of criminal cases without putting undue strain on prosecutorial or judicial resources, but, at the same time, without causing prejudice to joint defendants. Rule 21.2 provides for the joinder of defendants when the crimes were part of a joint scheme or plan and so the capital murder charges were properly joined. The issue is whether the trial court erred in refusing to grant a severance for the accuseds’ trials. Rule 22.3 provides that a trial court shall grant a severance if it is deemed appropriate to promote a fair determination of the guilt or innocence of one of the defendants.
Trial courts have discretion to grant or deny a severance and on appeal we will not disturb the ruling in the absence of an abuse of that discretion. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). In McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), we held that, in determining whether to grant a severance, a trial court should weigh: (1) whether the defenses of the defendants are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) whether one defendant could have deprived the other of all peremptory challenges; (5) whether one defendant will be compelled to testify if the other does so; (6) whether one defendant has no prior criminal record and the other has; (7) whether circumstantial evidence against one defendant appears stronger than against the other. Id. at 638, 648 S.W.2d at 57. Subsequently, in Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983), we said that McDaniel does not say that in every case, even in capital cases, where antagonistic defenses are presented the trial court must grant a severance, but merely that when defenses are antagonistic the trial court must be particularly careful that neither defendant is “unduly jeopardized” by a joint trial. Id. at 158-59, 655 S.W.2d at 422. More recently, we have written that the presence of any one of the factors does not necessarily require severance, as there are multiple factors to consider. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).
Almost all of the factors clearly weigh in favor of a joint trial. The joint trial was lengthy, lasting seventeen days, and perhaps separate trials would have taken twice as long and required twice as many jurors; the evidence was not difficult for the jury to segregate; the evidence was not significantly stronger against one defendant than the other; the testimony of one did not compel the other to testify; and there was no significant disparity in criminal records of the defendants. The trial judge made various comments when denying the severance motions, and those comments reflect that he thought the jurors could distinguish the evidence and apply the law intelligently to each offense and to each defendant.
The only argument that is of any consequence is the argument about antagonistic defenses. Echols and Baldwin argue that they had conflicting trial strategies, and, as a result, their defenses were antagonistic. The State’s response is that antagonistic defenses arise only when each defendant asserts his innocence and accuses the other of the crime. Certainly, we have held that antagonistic defenses arise when each defendant asserts his innocence and accuses the other of the crime, and the evidence cannot be successfully segregated. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); and McDaniel v. State, supra. But those are not the facts before us. Closer to the facts of this case, but not wholly dispositive of the argument, we have held that when there was no reason the jury could not have believed both defenses, the defenses were not antagonistic. Cooper v. State, 324 Ark. at 140, 919 S.W.2d at 209. Other courts have similarly held that where there was an evidentiary basis for the jury to decide each defendant’s case separately, there was no error in denying severance just because of inconsistent strategies. E.g., United States v. Jenkins, 496 F.2d 57, cert. denied, 420 U.S. 925 (1974); see also Wade R. Habeeb, Annotation, Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Case, 82 A.L.R.3d 245, 264 (1978).
Correspondingly, the Fifth Circuit Court of Appeals has written:
[W]e hold that the defense of a defendant reaches a level of antagonism (with respect to the defense of a co-defendant) that compels severance of the defendant, if the jury, in order to believe the core of the testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of this co-defendant.
United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981).
The Eleventh Circuit Court of Appeals followed the Fifth Circuit’s statement and applied it with the following four-step analysis:
(1) Do the alleged conflicts with co-defendant’s defenses go to the essence of the appellant’s defense?
(2) Could the jury reasonably construct a sequence of events that accommodates the essence of both defendants’ defenses?
(3) Did the conflict subject the appellant to compelling prejudice?
(4) Could the trial judge ameliorate the prejudice?
Smith v. Kelso, 863 F.2d 1564, 1568 (11th Cir. 1989).
In summary, unless conflicting strategies go to the essence of co-defendants’ defenses, and the conflicting strategies are so great that both defendants’ defenses cannot be accommodated by the jury, a trial court is not required to grant a severance. Here, the alleged conflicting strategies did not reach that level. The defense of each, in effect, was that he did not commit the crimes. Echols presented an alibi defense that he was visiting friends with his parents when the murders took place. Baldwin likewise presented an alibi defense that relied upon the fact that he was at school the day of the murders, was at home by ten o’clock that night, and was never placed near the scene. Echols’s arguments about conflicting strategy because of pretrial publicity and the reason he took the name “Damien” did not go to the essence of his defense and did not conflict with Baldwin’s defense. Similarly, Baldwin’s complaints that Echols was placed near the scene, but he was not seen there, do not go to the core of his defense that he had nothing to do with the crimes. The contention that Baldwin could have possibly argued that Echols placed the knife behind his trailer does not relate to the core of his general denial. Baldwin contends he was entitled to a severance because Echols testified at trial, but nowhere in Echols’s testimony did he implicate Baldwin. These alleged “conflicts in strategy” did not subject either defendant to a compelling prejudice.
The only alleged conflicts in strategy that are of any significance are Echols’s allegation that Baldwin said that he was under the influence of Echols, and the complaints ofboth appellants that their strategy conflicted on how to deal with the evidence of the occult activities. Echols’s argument about Baldwin stating that he acted under his influence is factually inaccurate. That statement was made during counsel’s closing argument, and counsel actually said that Baldwin might be vulnerable to a finding of guilt by association, since he and Echols were friends. This statement by counsel, apparently made in derision of the prosecution, clearly did not cause a conflict with Echols to the extent that it mandated severance. Thus, we are left with only the complaints about strategy in how to deal with the evidence of occult activities. Echols contends that his strategy would have been to openly admit all evidence of satanic worship in order to show its absurdity, while Baldwin contends that he wanted to exclude all of the evidence. Again, this alleged difference in strategy did not go to the general denial. Moreover, the jury obviously did not think the proof of occultism was absurd, and it is doubtful that Echols would have freely admitted satanic worship as a matter of strategy, even if he had a real choice in the matter. Even had the trial court granted motions for severance, the expert testimony would have been admitted in a trial against Echols, and it also would have been admitted against Baldwin, because of Michael Carson’s statement that Baldwin told him he sucked blood from Christopher Byers, a satanic-type act. In sum, this alleged difference in strategy did not go to the essence of either defense, did not prevent the jury from considering either defense, did not unduly jeopardize a fair trial, and did not mandate a severance.
Baldwin separately argues that the trial court erred in refusing to grant a severance when the deputy prosecutor questioned Echols about his doodles on a piece of paper. The argument is procedurafly barred. Baldwin’s argument to the trial court was that he was not notified, through discovery, of the paper. He argues to this court, as he did to the trial court, that the questioning, coupled with the fact that he was not provided the paper during discovery, entitled him to a severance. At trial the deputy prosecu tor acknowledged that the State had inadvertendy violated the discovery rules. Baldwin responded that he would be satisfied with a cautionary instruction to the jury that the testimony on this point could only be used against Echols. The trial court gave the requested cautionary instruction. Baldwin’s counsel responded, “That satisfies us, Your Honor.” Baldwin’s counsel again requested a severance, but did not mention the piece of paper with the doodles on it. The trial court denied the motion and again instructed the jury to consider the evidence only against Echols, and not Baldwin. Thus, Baldwin did not ask for a severance because of admission of a piece of paper with doodles drawn on it by Echols, and he cannot make the argument for the first time on appeal. Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995).
Baldwin next argues that his conviction should be reversed because the trial court made a “binding commitment” to grant a severance if Echols testified, and that Echols testified but the trial court did not grant a severance. In pretrial, the trial court stated that in the event one of them testified, the other might then be compelled to do so, and, “There’s case law on that, and the other defendant would be entided to an immediate mistrial.” In a similar case, we held that this kind of ruling does not amount to a “binding commitment.” In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), the trial judge told the defendants that if a conflict developed in selection of jurors, a severance would be granted, because “that’s the law.” Id. at 151, 772 S.W.2d at 301. This comment was made after the trial judge refused to enlarge each defendant’s number of peremptory challenges. Later, the defendants disagreed over some jurors, and moved for a severance, which was denied. Id. We held that the trial judge had not made a binding commitment, but had alluded to the law as set forth in McDaniel v. State, which states that one factor favoring severance is when one defendant deprives the other of peremptory challenges. We held that the trial court did not abuse its discretion by denying severance when the facts had not developed to that point. Similarly, Echols did not implicate Baldwin when he testified, and, as a result, the trial court did not abuse its discretion in denying the severance.
Baldwin next insists that severance was required in these capital cases as a matter of law. Before the Arkansas Rules of Criminal Procedure were adopted, the trial court had discretion to grant severance of defendants in all cases except capital cases, where they were granted severance as a matter of right under Ark. Stat. Ann. § 43-1802 (Repl. 1977). Baldwin contends that the statute, an initiated act, is still in effect. To the contrary, in McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), we held that the cited statute had been superseded by Ark. R. Crim. P. 22, which gives the trial court discretion to grant or deny a severance in all cases. Id. at 636, 648 S.W.2d at 59. In Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979), we held that since the adoption of Ark. R. Crim. P. 22, capital defendants no longer have a right to separate trials. Id. at 904, 575 S.W.2d at 691. However, in Clines v. State, 282 Ark. 541, 543, 669 S.W.2d 883, 885 (1984), in dicta in a per curiam opinion, the court expressed doubt as to whether the act had been superseded. We should not have expressed any doubt about the matter in Clines because our holdings in McDaniel and Hallman are clear that the act has been superseded by Ark. R. Crim. P. 22. Moreover, Ark. Stat. Ann. § 43-1802 has been repealed. The General Assembly adopted the Arkansas Code of 1987 Annotated by Act 267 of 1987. Section 4(a) of Act 267, codified as Ark. Code Ann. § 1-2-103(a) (1987), specifically provides that “[a]ll acts, codes and statutes, and all parts of them and all amendments to them of a general and permanent nature in effect on December 31, 1987 are repealed,” with some exceptions not material to this case. Section 4(a) of Act 267 repealed Ark. Stat. Ann. § 43-1802 and did not reenact it. Ninety-seven of the one hundred members of the House voted for Act 267, and thirty-three of the thirty-five members of the Senate voted for it. 2 Journal of the House 1699 (1987); 3 Journal of the Senate 2134-35 (1987). Thus, Act 267 had the two-thirds vote needed from each chamber of the General Assembly to repeal an initiated act under Amendment 7.
Suppression of Evidence Arguments
Echols and Baldwin make a number of arguments contending that the trial court erred in denying their motions to suppress evidence. The facts underlying the arguments are recited as follows. On June 3, 1993, nighttime search warrants were executed for the residences of Echols and Baldwin. The warrants each authorized a search for the following:
black t-shirt; blue jeans with holes in knees; lace-up boots; briefcase and contents of briefcase with photographs of young white males; knives; any items contained in a list of items to compare with Arkansas Crime Lab Evidence, which consisted of “blue, green, red, black, and purple fibers, blue, yellow, red, paint or plastic, and blue, red waxing type substance”; and cult or Satanic materials.
A red robe, fifteen black t-shirts, and a white t-shirt were seized from Baldwin’s house. Two notebooks that appeared to have satanic or cult writings in them, a red t-shirt, blue jeans, and boots were taken from Echols’s residence.
Both appellants make a number of suppression arguments. The first of these is that Detective Bryn Ridge’s affidavit and testimony supporting the warrant were false, and consequendy the trial court erred in refusing to suppress the evidence seized from the searches.
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that the good-faith exception does not apply when the issuing magistrate was misled by an affiant who either knew the information given was false or acted in reckless disregard of its truth or falsity. Id. at 923. Franks v. Delaware, 438 U.S. 154 (1978), provides the test for determining when a warrant falls outside the Leon good-faith exception. Under Franks v. Delaware, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement which was made knowingly, intentionally, or recklessly by the affiant; and (2) the false statement was necessary to a finding of probable cause. Id. at 155-56. Further, if such a finding is made, the false material should be excised and the remainder of the warrant examined to determine if probable cause still exists. Id. If the truthful portion of the warrant makes a sufficient showing of probable cause, the warrant will not be invalidated. Id. The burden of showing that an affiant knowingly and recklessly included a false statement is upon the challenger of the affidavit. Id. at 171.
In Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), we held that the standard set out in Franks v. Delaware requires a knowing intent to deceive, or a reckless disregard of truth. Id. at 175, 862 S.W.2d at 828. “Matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit and which render what is in the affidavit effectively false because of their nondisclosure.” Biggers v. State, 317 Ark. 414, 421, 878 S.W.2d 717, 721 (1994).
The affidavit of Detective Ridge contained the false statements that appellants contend invalidate the warrant. In the affidavit, Detective Ridge stated that Jessie Misskelley told him the victims were tied with brown rope when they were actually tied with shoestrings, and that the killings took place in the afternoon. The latter statement is of no consequence because the record reveals that the issuing magistrate, Judge Rainey, expressed some concern about the time discrepancy, and, as a result, Inspector Gary Gitchell testified under oath that he had taken an additional statement from Misskelley, and, in it, Misskelley said the crimes took place around 7:00 p.m.
Even if these two statements were false in material matters, and even if Detective Ridge knew them to be false, the rest of the warrant still made a sufficient showing for probable cause. See Franks v. Delaware, supra. The warrant contained a sufficient showing of the facts that Misskelley said he, Baldwin, and Echols committed the murders; that Misskelley had knowledge of details of the crime not known to the public; and the statement that evidence connecting them to the crime could be found in the homes.
Baldwin separately argues that Detective Ridge knowingly and intentionally misrepresented the truth when he swore that Echols, Baldwin, and Misskelley were members of a cult. We summarily dismiss this argument because Jessie Misskelley told Inspector Gitchell that the three were in a cult, and Detective Ridge testified at the suppression hearing that he had learned from other sources that the three were in a cult. Thus, Baldwin did not meet his burden of showing that Detective Ridge knowingly and intentionally stated a falsehood. See Franks v. Delaware, supra.
Echols and Baldwin next contend that the circuit judge erred in finding that the municipal judge who issued the warrants was neutral and detached in determining whether to issue the warrants. Detective Bryn Ridge testified that Judge Rainey informed the officers “as to the elements that needed to go in the affidavit in order for it to be a legal document.” Judge Rainey testified that he advised the officers that, after the search warrant had been executed, they should make sure that they wrote out everything they did on the affidavit.
The general rule for the application of the Fourth Amendment exclusionary rule to evidence seized under an invalid warrant is set out in United States v. Leon, 468 U.S. 897 (1984). There, the Court carved out the good-faith exception to the re quirement of a valid warrant. Id. at 922. One of the errors that an officer’s good faith will not cure is that which occurs when the magistrate wholly abandons his detached and neutral judicial role. Id. When a judicial officer becomes so involved in the investigation as to be deemed a participant, he has abandoned this role. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). For example, when a magistrate accompanies the police to the scene and orders seizure of items, his objectivity is lost. Id. at 327. Likewise, when a magistrate gives the prosecutor directives about areas of inquiry or grants immunity to witnesses, he has lost his objectivity. See State v. Guhl, 140 Ga. App. 23, 230 S.E.2d 22 (1976). Here, the proof showed that the issuing magistrate stated the elements necessary for a valid warrant, and that included telling the officers to record on the warrant the actions they took when they executed the warrant. On such proof we cannot say that the ruling of the trial court was clearly in error. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).
Both Echols and Baldwin contend that the trial court erred in ruling that Jessie Misskelley was a reliable informant. Again, we cannot say that the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, supra. Even though Misskelley’s initial statement was in error about the ligatures and the time of the killings, he corrected the latter and he clearly knew that Christopher Byers had been castrated and that one of the victims had been cut in the face. This information was not known by the public at the time he supplied this information. Further, Detective Ridge corroborated these statements by his own knowledge gained at the crime scene, and through contacts at the state crime laboratory. Even more important, Misskelley implicated himself in the murders because he admitted that Michael Moore attempted to escape from the crime scene, and he chased and caught Moore and brought him back. Thus, the finding that Misskelley was a reliable informant was not clearly in error. See Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev’d on other grounds, 115 S. Ct. 1914 (1995); Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).
Both Echols and Baldwin next contend that the warrant did not describe with particularity the items to be seized. We quickly dismiss the argument. All of the items to be seized were described with particularity, except the fibers to be seized for the crime laboratory, and it is difficult to think of a way the warrant could have been more specific than to describe, as it did, the blue, green, red, black, and purple fibers; blue, yellow, red, paint or plastic; and blue or red waxing-type substance.
Both appellants also contend that the warrant authorized a “dragnet” fishing expedition for “mere evidence.” In Warden v. Hayden, 387 U.S. 294 (1967), the Supreme Court held that the Fourth Amendment allows the seizure of not only the implements of the crime, but also allows the seizure of mere evidence providing that there is a probable cause to believe the evidence sought will aid in a conviction.
Echols and Baldwin next contend that the trial court erred in refusing to suppress the evidence seized because it was a nighttime search.
The nighttime clause in the affidavit stated:
Your affiant prays that this SEARCH WARRANT be approved for both night time and day time service for the following reasons:
A. The objects to be searched for are in imminent danger of removal, could be destroyed or disposed of as suspects are close friends and members of a close-knit cult group. It is extremely likely that information of the detention of one of the cult members will result in the immediate destruction of items of evidence, or place such objects to be seized in danger of imminent removal. One of the suspects is in custody at the time of the execution of the affidavit.
Rule 13.2 of the Arkansas Rules of Criminal Procedure provides for nighttime searches as follows:
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(ii) the objects to be seized are in danger of imminent removal; ....
Ark. R. Crim. P. 13.2(c)(ii).
In reviewing whether the requirements of the rule were met, we conduct an independent determination based upon the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). The evidence presented to the magistrate from whom a nighttime search is requested must be of facts justifying a warrant rather than mere conclusions. Neal v. State, 320 Ark 489, 898 S.W.2d 440 (1995).
Here, there were facts stated to support the conclusion that the evidence was in danger of imminent removal. Detective Ridge testified at the hearing that his investigation revealed that appellants and Misskelley were close-knit members of a cult, and, upon Echols and Baldwin discovering that Misskelley had been taken into custody, Echols and Baldwin were likely to destroy any evidence that might be in their possession or at their residence, such as photographs, knives, and clothing. In light of this testimony, the trial courts conclusion that the nighttime search was justified was not against the preponderance of the evidence. See Neal v. State, supra.
Evidence Arguments
Echols and Baldwin make numerous arguments about eviden-tiary rulings throughout the trial. Many of their objections concerned admission of evidence regarding the occult. The State sought to prove that the murders were cult-related and that someone with Echols’s interest in the occult could have committed the murders. Baldwin argued throughout that the State had failed to connect him with occult activity.
Occult activity: In one of these arguments, Echols contends that the trial court erred when it ruled that Dr. Dale Griffis was qualified as an expert in the field of occultism. Echols contends that Dr. Griffis was not qualified as an expert because he received a Masters degree and Doctor of Philosophy degree from a university that, although state certified, was not nationally accredited. Also, he wrote his dissertation with another person, and he did not demonstrate that he had reputable training, education, and experience.
Qualification of expert witnesses is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. If there is a reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowl edge, the witness may be qualified as an expert. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). Here, proof showed that Dr. Griffis holds an associate in arts degree and a bachelor’s degree from an accredited institution, but his advanced degrees are from Columbia Pacific University, which is not nationally accredited. Another qualification was that his doctoral dissertation was on mind control and cults and their effects on the objectives of law enforcement. His first experience with nontraditional groups was in 1967, almost thirty years ago, and he has twenty-six years of experience in law enforcement. For short periods of time, he worked for the Los Angeles and San Francisco Police Departments, where he gained experience in nontraditional groups. He testified that he has talked to about 500 former members of the occult and read about 300 books on the subject. He testified that he receives approximately sixty-five to seventy calls a week regarding nontraditional groups, and about eighty percent of those calls are related to satanism. He has published four books on the subject. He has testified as an expert witness in state courts in Georgia, Ohio, and Michigan; in federal court in Ohio; and in two foreign countries. He has lectured in twenty-eight states and two other foreign countries. Dr. Griffis had much more than ordinary knowledge of nontraditional groups, the occult, and satanism, and the trial court did not abuse its discretion in allowing him to testify as an expert witness.
Echols next contends that Dr. Griffis should not have been allowed to testify that the murders had the “trappings of occultism” because there was no testimony that the field of satanism or occultism is generally accepted in the scientific community. The argument is without merit, as the trial court did not allow the evidence to prove that satanism or occultism is generally accepted in the scientific community. Rather, the trial court admitted the evidence as proof of the motive for committing the murders.
In a related vein, Echols makes a twofold argument that the trial court erred in allowing evidence of his interest in the occult. He argues that the ruling violated his First Amendment rights and that the trial court abused its discretion in determining that the evidence was relevant and more probative than prejudicial.
The First Amendment argument can be quickly dismissed. In Dawson v. Delaware, 503 U.S. 159 (1992), the Supreme Court held that the introduction of evidence of beliefs and associations violates a defendant’s constitutional rights when there is no connection between those beliefs and associations and the crime. But the Court expressly distinguished Barclay v. Florida, 463 U.S. 939 (1983), in which it held that dissident beliefs and racial hatred stemming from the defendant’s membership in the Black Liberation Army were relevant to the murder of a white victim, and, as such, his First Amendment rights were not violated. Dawson v. Delaware, 503 U.S. at 164. The case at bar falls within the ambit of Barclay v. Florida.
Echols makes several relevancy arguments regarding physical evidence of occult activity. The trial court allowed the State to introduce into evidence a journal that contained matters handwritten and drawn by Echols. The entries contain numerous images of death, as well as references to rotting flesh and dead children. The State focused upon an entry that said “I want to be in the middle. In neither the black nor the white. In neither the wrong nor the right.” The State offered the statement to explain the confusion expressed by the occult expert, Dr. Griffis, that some of the symbols in one of Echols’s books were from the Wiccan, or “white magic” religion, and others from satanism, or “black magic,” and the two are not consistent. Echols first objected on the ground of the best-evidence rule, and the State responded that it would supply the original. Echols’s counsel responded, “We request that the entire book and all my client’s writings be introduced into evidence. We object to part being taken out.” The trial court ruled that the entire journal would be received. Thus, the trial court ruled in Echols’s favor, and a party cannot obtain relief from a favorable ruling. Smith v. State, 316 Ark. 407, 872 S.W.2d 842 (1992).
The trial court also allowed in evidence, over Echols’s objection, items taken from Echols’s room in a juvenile court proceeding in 1992. The items had been kept in his juvenile court file. These items included a dog’s skull; a manual; a funeral register upon which Echols had drawn a pentagram and upside-down crosses and had copied various spells; a heavy-metal poster depicting graveyards; a skateboard magazine; and pictures of various posters. On appeal, Echols contends that the items were not admissible because they were not relevant and because they came from his juvenile court file.
The State’s expert, Dr. Griffis, testified that the manner of the killings, the age of the victims, the way the victims were tied, the removal of genitals, and the evidence of bloodsucking were indicative of occult activity, and he referred to five of the exhibits from the juvenile court file during his testimony. The evidence was relevant to show motive. We have said that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused’s state of mind. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). Further, a trial court’s ruling on relevancy, as well as prejudicial impact, is afforded great deference by a reviewing court and will not be disturbed absent an abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
It is true that the items came from Echols’s juvenile court files, but Ark. Code Ann. § 9-27-309(a) gives the juvenile court discretion to open files. The trial court noted that the juvenile court had, by order, opened the files for the State.
A book, Never on a Broomstick, which is about the history of witches, was found in Echols’s room after the murders. Again, it was relevant to show Echols’s interest in the occult.
Echols and Baldwin make yet another relevancy argument. In its case-in-chief, the State called Jerry Driver, a juvenile officer, to testify that he saw Echols, Baldwin, and Misskelley walking together six months before the murders, and that they were wearing long black coats and carrying long sticks or staffs. Echols and Baldwin each made an objection based on relevancy. The trial court ruled that the murders could have been committed with staffs and that they could have been occult murders; therefore, the evidence was relevant.
To be relevant, it is not required that evidence prove the entire case or even a single issue. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). All that is required is that it have “any tendency” to make any fact that is of consequence to the determination of the action more or less probable. Ark. R. Evid. 401. Here, the State’s theory was that the murders were cult-related, and there was additional evidence about occult practices. This evidence provided a circumstantial link and was therefore relevant.
Baldwin argues that the occult evidence should not have been admitted because there was “little if any” evidence to link him to such activity, and the only reason for it to be admitted against him was to inflame the jury. Prior to trial, Baldwin filed a motion in limine to prevent the State from eliciting testimony that the crimes were occult-related without first conducting an in camera hearing to determine that there was a sufficient basis to find that he was involved in such activities and that the activities were a motive in the homicides. The trial court granted the motion “until such time as the Court is convinced in an in camera proceeding that there is competent evidence that [Baldwin] was involved in occult and/or occultic type activities and/or that this crime is indicative of a ritualistic occult killing.”
The trial court subsequendy found that Michael Carson’s testimony that Baldwin told him he had dismembered one of the boys, sucked the blood from his penis and scrotum, and put the testicles in his mouth was evidence by which a jury could conclude that he was involved in occultic-type activities. From the in camera testimony of Dr. Dale Griffis, an expert on ritual killings, there was evidence by which a jury could find that the crimes were a ritual killing. Dr. Griffis stated that one of the facts that led him to believe that the killings were cult-related was that Christopher Byers was castrated and had had the blood sucked from his penis. Thus, there was sufficient evidence of Baldwin’s participation in occult activities, and the trial court correctly allowed the evidence. See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). In United States v. Mills, 704 F.2d 1553 (11th Cir. 1983), in affirming a trial court’s decision to admit evidence that the defendant was associated with the Aryan Brotherhood, a white supremacist group that exists in prisons, the Eleventh Circuit Court of Appeals said:
Such evidence ... is now considered proper if it is linked together in time and circumstances to the crime charged, or if it forms an “integral and natural” part of the account of the circumstances of the crime, or is necessary “in order to complete the story of the crime on trial.”
Id. at 1559 (citations omitted).
Echols called Robert Hicks as an expert witness who has done extensive studies and consulting about cult crimes. Hicks testified that the murders were not cult-related. Echols’s counsel sought to question Hicks about the opinion of Ken Lanning, an FBI expert on cult crimes. Counsel asked Hicks if he was familiar with Lan-ning’s writings and if he knew Lanning’s opinion on cult-related crimes. The State objected on the basis of hearsay, and the trial court sustained the objection. The court said that Hicks could state his own opinion, but not the opinion of someone else. Echols assigns the ruling as error.
The scholarly treatise exception, Ark. R. Evid. 803(18), provides:
Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on the subject of history, medicine, or other science or art, established as a reliable authority by testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Id. (emphasis added). The rule applies to a particular statement from a particular treatise, not to a general opinion of another expert based upon a generalized familiarity with the expert. Here, no foundation was laid about a particular treatise to which the witness could refer, and no foundation was laid about the reliability of the expert on the subject. Before a treatise may be used, its reliability must be established. Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985). Since the trial court was not apprised of a particular treatise, or its reliability, the hearsay objection was correctly sustained. Moreover, Echols could not have suffered any prejudice from the ruling because the information was later given to the jury. On redirect, Echols’s counsel asked Hicks if his book gave the following Lanning statement, “Bizarre crime and evil can occur without organized satanic activity. The law enforcement perspective requires that we distinguish between what we know and what we are not sure of.” Hicks said the statement was in his book, and he agreed with it.
On cross-examination, the State asked Hicks about the philosophies of Aleister Crowley, a turn-of-the-century British writer who supposedly condoned human sacrifice. Echols objected on the ground that he had not been allowed to ask about quotations from Lanning. Echols’s counsel stated that both sides should be treated equally. The court responded that the witness could give his own opinion, or testify about his familiarity with the works of another person in the field, but he could not adopt the other expert’s opinion as his own. After Hicks testified that he had “mixed feelings” about whether Crowley espoused human sacrifice, the State asked if Hicks was familiar with Crowley’s book, Magic in Theory and Practice, and he said that he was. There was no attempt to prove reliability, but Echols did not object to this lack of foundation and does not complain of it on appeal. Rather, in this point, he argues that the law-of-the-case doctrine prohibited the court from making a different ruling on the same argument. The argument is without merit. The rulings were not inconsistent, but, even had they been inconsistent, the law-of-the-case doctrine was not applicable. While the doctrine is not limited to appeals and may be applied to issues raised in a continuing lawsuit, Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994), when applied in a continuing suit, the doctrine is different from when applied to subsequent appeals. As Justice Holmes wrote in Messenger v. Anderson, 225 U.S. 436 (1912), this doctrine, when applied to the effect of previous orders on the later action of the court rendering them in the same case, “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Id. at 444; see also 18 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4478 (1996). In the present case it is questionable whether this was the “same issue,” but even if it were, the trial court had the power to reconsider its ruling. In any event, Echols suffered no prejudice because he got the Lanning quotation in evidence.
Other suspects: Throughout the trial, both appellants attempted to put in front of the jury evidence of other suspects. The following arguments involve rulings on evidence that both appellants sought to introduce to show that someone else committed the killings.
Echols assigns as error a ruling that, he contends, arbitrarily stopped him from examining John Mark Byers. Echols called John Mark Byers, the stepfather of victim Christopher Byers, during his case-in-chief. Byers was considered a suspect at one time, and the police had questioned him about human blood of the same type as Christopher’s that was found on a Kershaw hunting knife that belonged to John Byers. Echols contends that his direct examination of Byers was arbitrarily stopped by the trial court. The facts underlying the argument are as follows. Earlier, during Inspector Gary Gitchell’s testimony, Echols’s counsel asked Gitchell if he had questioned Byers about the murders before charges were filed against Echols. Gitchell answered affirmatively. Echols asked Gitch-ell about some of the questions he had asked Byers and about some of Byers’s responses. The trial court ruled that the testimony was hearsay and that Echols’s counsel could ask the questions of Byers when he took the stand. Later, when he called Byers during his defense, Echols’s counsel began reading Byers the questions Inspector Gitchell had asked him. The court ruled that the form of Gitchell’s questions was not relevant and directed Echols’s counsel to ask Byers about the circumstances, and if Byers contradicted any statement he had given Gitchell, then Echols’s counsel could “read every word of [Byers’s statement to Gitchell] that is contrary to what his answers were.”
On appeal, Echols assigns the ruling as error and contends that he was not allowed to question Byers about the kind of knife he had, if he had ever taken the knife hunting, if he used the knife, and why DNA tests of the blood on the knife matched his blood. The trial court did not arbitrarily stop Echols’s counsel from asking proper questions. In fact, the record shows that Echols’s counsel was allowed to ask the questions he complains that he was not allowed to ask. Echols’s counsel showed Byers a Kershaw hunting knife and asked if he could identify it and whether it belonged to him. Byers responded affirmatively to both questions. Echols counsel asked Byers if he had ever taken the knife deer hunting, and he responded “no.” When asked if he had ever used the knife, he said he had used it to trim his toenails and had attempted to trim some venison with it. At this point he impeached Byers with his earlier answer to Gitchell in which he said that the knife had not been used at all. Finally, he asked Byers if, to his knowledge, blood had been found on the knife. He responded that he had no idea how any blood could have gotten on the knife, except that he remembered cutting his own thumb. On each occasion when one of Byers’s answers was inconsistent with his statement to Gitchell, Echols’s counsel was allowed to read from Gitchell’s report.
Echols also sought to ask Byers if he had been sodomized when he was eighteen, whether he had prior drug arrests, and whether he had ever been an informant. The trial court ruled that the questions were not relevant to any issue in the trial. On appeal, the State contends that we should not reach the point because Echols did not make a proffer. We hold that Echols made a sufficient offer of proof. Counsel stated the questions he wanted to ask and gave the answers he anticipated the witness would give. That was a sufficient offer of proof under Ark. R. Evid. 103(a)(2).
Here, Echols was attempting to show that Byers might be the one who committed the murders because he had been abused as a young man and had committed other bad acts. We have held that evidence that a third party may have committed the crime is inadmissible unless it points directly to the guilt of the third party. If it creates no more than an inference or conjecture as to the third party’s guilt, it is inadmissible. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). We have also held that there should be sufficient connection between the evidence and the possibility of another person’s guilt before it is admissible. Larimore v. State, 317 Ark. 111, 124, 877 S.W.2d 570, 576 (1994). Here, the facts that the witness may have been abused and may have committed unrelated bad acts created no more than a reckless inference that he murdered his stepson and the other two victims.
Echols’s counsel questioned Detective Bill Durham of the West Memphis Police Department about a photographic spread of suspects he had shown to Aaron Hutcheson. In response to questions, Durham testified that he did not remember who was in the photospread and did not know if Echols’s photograph was included in the spread. Echols’s counsel continued to pursue the inquiry, and Durham responded a number of times that he did not know who was included in the photospread. Finally, over counsel’s objection, the trial court stopped questioning on the subject because it was not relevant. Echols’s purpose in the questioning was to attempt to show that there might be another suspect, or some other suspects. Certainly, an accused is entitled to show that someone else committed a crime, but an accused is not entitled to offer evidence of other suspects on a wholly speculative basis and without linking the other suspects in some manner. Here there was nothing to indicate that anyone in the photospread committed the crimes, and the trial court correctly ruled that further questioning of the officer about the photospread was irrelevant. See Zinger v. State, supra.
Echols next argues that the trial court erred when it refused to allow him to introduce a serologist’s report from the crime laboratory. Arkansas Code Annotated § 12-12-313(a) (1987) provides that an evidence analysis made by the State Crime Laboratory shall be received as competent evidence subject to the applicable rules of criminal procedure. The purpose of the statute is to remove reports from exclusion under the hearsay rule, not to require that they always be admitted for any reason. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992). Echols sought to introduce a copy of the report, not to show the analysis made by the laboratory, but to show the names of other people, primarily John Mark Byers, who were listed as suspects in the murders. The trial court ruled that the hearsay statements contained in the report were not admissible and that the names of suspects listed on the document would not be admitted unless there was some evidence to connect the suspects with the crimes. The ruling was correct. The statute removes reports from exclusion under the hearsay rule, but that does not mean that they are admissible for any reason. Moreover, evidence that a third party may have committed the crime is inadmissible unless it points directly to the guilt of the third party. If it creates no more than an inference or conjecture as to the third party’s guilt, it is inadmissible. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). Further, Echols could not show prejudice because the jury was informed that John Mark Byers was a suspect.
Both Echols and Baldwin next contend that the trial court committed error when it refused to allow them to call Chris Morgan as a defense witness. Morgan lived in the West Memphis area at the time of the murders and moved to California four days after-wards. The trial court ruled Morgan could be called by appellants but, when Morgan asked for a lawyer, the trial court instructed appellants’ counsel to put on another witness while Morgan consulted with counsel. After consulting with his lawyer, Morgan stated that he would invoke the Fifth Amendment privilege against self-incrimination. Appellants argued that Morgan should not be allowed to invoke a “blanket” Fifth Amendment privilege, but instead would have to claim the privilege in response to each question they chose to ask. Morgan’s lawyer stated that there were federal charges pending against Morgan in Tennessee, and that there were some overlapping facts in his statements regarding these charges. The trial court ruled that appellants could not call Morgan because, under the provisions of Ark. R. Evid. 512, a witness should not be compelled to invoke his privilege in front of the jury, and that if he were forced to take the stand and invoke the privilege against self-incrimination any probative value would be substantially outweighed by the possibility of confusing the jury. See Ark. R. Evid. 403.
Rule 512(b) of the Arkansas Rules of Evidence provides, “In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.” Appellants argued to the trial court that this rule applies only to the privileges delineated in Ark. R. Evid. Article V, and not to the Fifth Amendment privilege. On appeal, appellants cite no authority for the argument, and, to the contrary, Arkansas Rule of Evidence 501 states, “Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to refuse to be a witness.” Ark. R. Evid. 501(a). This includes the Fifth Amendment, as it is a privilege “otherwise provided by constitution.” The case of Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990), reflects the same rationale. There, we held that “neither the prosecution nor the defense is permitted to call a witness knowing that the witness will claim his testimonial privilege.” Id. at 159, 782 S.W.2d at 580. Our reasoning in that case was that neither side should be permitted to build a case out of a series of invocations of the privilege, which would be the equivalent in the jury’s minds of testimony. Id.
Moreover, in addition to passing a Rule 403 balancing test, the kind of evidence appellants sought to introduce must have had a tendency to negate the defendant’s guilt. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). This kind of evidence is inadmissible unless it points direcdy to the guilt of the third party. If it creates no more than an inference or conjecture as to the third party’s guilt, it is inadmissible. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). There must be a sufficient nexus between the evidence and the possibility of another person’s guilt. Larimore v. State, supra. Similarity and time connections are factors in determining the probativeness of the evidence, which must be weighed against the possibility of confusing the issues and wasting time. Id. Here, the trial court had heard a proffer and knew that his statement did not exculpate the appellants. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, which this court will not disturb on appeal absent a showing of manifest abuse. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). The standard of review for both relevancy determinations and the decision to admit evidence by balancing the probative value against unfair prejudice or confusion of the issues is similar. Larimore v. State, 317 Ark. at 124, 877 S.W.2d at 576. In sum, the trial court did not abuse its discretion in refusing to allow appellants to call Morgan and make him claim his Fifth Amendment privilege in front of the jury.
Miscellaneous rulings: Appellants also assign various miscellaneous evidentiary ridings as error. Baldwin argues that the trial court erred in allowing Dr. Peretti, the state forensic pathologist, to testify that in his opinion, the three victims had been sodomized. Prior to trial, Baldwin filed and argued a motion in limine seeking to exclude evidence that the boys were sodomized. The trial court denied the motion. On appeal, Baldwin argues that Dr. Peretti’s testimony concerning sodomy was mere guess and conjecture because there was an absence of scientific evidence to confirm his testimony. He argues that an expert’s testimony must be that his opinion represents his professional judgment as to the most likely or probable result. This argument is easily disposed of in that Dr. Peretti did not testify that it was his opinion that the victims had been sodomized, but rather testified as to the condition of the victims and the possible causes of the victims’ conditions.
At trial, Dr. Peretti testified as to the injuries that the victims received. In discussing the injuries, he testified that Michael Moore had anal dilatation and redness of the anal-rectal mucosa. When asked whether those findings would be consistent with some sort of sexual trauma, Dr. Peretti testified:
Well, you have dilatation of the anus. It could be from putting an object in the anus. But also it could be due to the fact that postmortem relaxation and the fact that the body was in water. And that could alter things, also.
Dr. Peretti further stated that Steve Branch’s anus was dilated and the lining of the rectum and anus showed mild reddening, but that no further injuries were noted to the anal and rectal mucosa. He testified that Christopher Byers had genital-anal injuries.
Upon cross-examination, Dr. Peretti testified that the anuses of the victims were swabbed to determine the existence of sperm and that none was found. He testified that, in his experience, when someone was forcibly sodomized, he had always found injuries to the anal regions. He said that he would expect to find lacerations, contusions, and abrasions, and that he would also expect to find microscopic evidence of hemorrhage. He noted that there was no injury to the anal-rectal mucosa. On redirect examination, Dr. Peretti stated that anal dilatation and the bodies being submerged in water could have caused any sperm to be washed away. He explained that if there was attempted penetration, and an object did not actually enter the anus, he would not expect to find lacerations. He also noted that there could be a sexual attack with no ejaculation and, therefore, no evidence of sperm. He further testified that the degree of lacerations and trauma to the anal area would be based on the size of the object penetrating the anus.
Baldwin’s argument that the State elicited an opinion from Dr. Peretti that the boys had been sodomized is incorrect. Rather, Dr. Peretti, who was qualified as an expert in forensic pathology, testified regarding the condition of the bodies when he received them. His testimony was that the anuses were dilated and had reddening or congestion of the mucosa. When asked by the State if this condition was consistent with sexual trauma to the anal area, he answered that it would be consistent with that or postmortem relaxation and the fact that the bodies were in the water. Dr. Peretti simply explained the injuries and testified as to possible causation, consistent with his findings, as he was qualified to do.
Whether to qualify a witness as an expert is a matter left to the discretion of the trial court and the trial court will not be reversed absent an abuse of discretion. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995). Dr. Peretti was qualified as an expert in forensic pathology without objection. Once a witness is qualified as an expert, any weaknesses in the bases for his opinions can be brought out on cross-examination, and it is then for the jury to determine the weight and credibility to give the testimony. Id. In the present case, Dr. Peretti testified in detail regarding possible causes of the dilatation of the anuses and the congestion of the mucosa. Though Dr. Peretti did not testify that it was his opinion that the boys had been sodomized, any strengths or weaknesses in the argument that they had been were thoroughly explored through the direct and cross-examinations of him. The trial court did not err in allowing his testimony regarding the conditions of the victims’ anuses and the causes consistent with the conditions.
Baldwin next argues that the trial court erred in allowing Dr. Peretti to testify that the victims had been forced to perform oral sex. Baldwin asserts that he objected to Dr. Peretti expressing this opinion prior to the testimony coming before the jury. His argument regarding Dr. Peretti’s testimony as to oral sex is essentially the same as that he makes regarding sodomy — that Dr. Peretti’s opinion was mere speculation and conjecture. Baldwin contends that scientific evidence that would confirm such an opinion was absent; there were neither injuries to the inside of the mouths nor evidence of sperm in the mouths. The State correcdy responds that Baldwin did not preserve this point for appeal because he neither moved in limine to exclude Dr. Peretti’s opinion concerning whether the victims were forced to perform oral sex nor objected at trial to Dr. Peretti’s testimony on the subject. In short, Baldwin failed to raise this issue before the trial court. In order to preserve an issue for appeal, a specific and timely objection must be made in the trial court, apprising the trial court of the appellant’s arguments. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Having failed to object to Dr. Peretti’s testimony on evidence of oral sex before the trial court, Baldwin cannot raise the issue on appeal.
Even if Baldwin had objected to this testimony, it was not error for the trial court to allow it. Dr. Peretti testified that Michael Moore had injuries to the ears and the mouth and that he generally sees these types of injuries in children who are forced to perform oral sex. He also said that the injuries to the mouth could be caused by a punch or a slap. He noted that Steve Branch’s injuries to his ears and mouth were similar to Michael Moore’s, as were Christopher Byers’s. Dr. Peretti, who was qualified to testify concerning the wounds of the victims and causation, testified that he generally saw the same types of wounds in child victims who were forced to perform oral sex. On cross-examination, he testified that the boys could have the external injuries, with no internal injuries or presence of sperm, and still have been forced to perform oral sex. He opined that if the oral sex was forceful enough to cause the bruises to the outside of the mouth, he would think that there would be bruising to the inside of the mouth as well. Dr. Peretti’s qualification as a forensic pathologist was not questioned; therefore, any weaknesses in the bases for his opinions concerning oral sex, as they were developed on cross examination, would go to weight and credibility rather than admissibility. Suggs, supra.
Baldwin asserts that the trial court erred in allowing Dr. Peretti to give his opinion that the sticks recovered from the crime scene were consistent with having caused some of the victims’ wounds. Again, Baldwin argues that this testimony concerning the sticks was mere conjecture and speculation. Baldwin bases this argument on the fact that Dr. Peretti testified that the sticks could have caused the injuries, but a number of other objects could have caused them as well. Baldwin filed a motion in limine requesting that the State not be allowed to make any reference to the sticks without first laying an evidentiary foundation out of the hearing of the jury. He asserted that there was nothing to tie two of the sticks to the murders. At the hearing on the motions in limine, Baldwin made specific reference to allowing Dr. Peretti to testify that the injuries were consistent with having been caused by the sticks. The trial court denied the motion in limine regarding the sticks.
The State questioned Dr. Peretti regarding the various injuries to the victims and asked him whether the injuries to the victims’ scalps that were consistent with being caused by an object the size of a broom handle could have been caused by one of the sticks that the State recovered from the crime scene. Dr. Peretti testified that the stick could have caused the injury. The State also asked whether the injuries caused by a larger blunt object could have been caused by the larger stick recovered by the State from the scene, and Dr. Peretti answered affirmatively. On cross-examination, Dr. Peretti testified that there were no wood fragments on the bodies of the victims. He also testified that he would expect to find wood fragments, unless they were washed off in the water. He testified that the injuries could have been caused by hundreds of items other than the sticks recovered at the scene.
It was not error for the trial court to allow Dr. Peretti’s testimony. He testified in detail concerning the size, shape, and nature of the wounds and then opined that they could have been caused by the two sticks shown him by the State. Baldwin argues that Peretti gave an opinion based on mere conjecture and asserts that the foundation for an expert’s opinion must not be nebulous. However, Dr. Peretti gave a thorough foundation for his opinion, which was not that the sticks caused the injuries, but that the wounds were consistent with being caused by the sticks. He also testified that the wounds could have been caused by other objects. It was for the jury to determine the weight and credibility to give his testimony concerning the sticks. Suggs, supra.
Baldwin’s final argument regarding Dr. Peretti’s testimony is that the trial court erred in allowing Dr. Peretti to testify that some of the victims’ wounds could have been caused by the knife recovered from behind Baldwin’s house. The State responds that the argument is not preserved for appeal because Baldwin only objected to Dr. Peretti testifying that some of Steve Branch’s injuries were consistent with having been caused by the State’s knife. The State then asserts that even if the argument is preserved, the trial court should not be reversed. From the record, it appears that the State is correct that Baldwin only objected to Dr. Peretti testifying that the injuries to Steve Branch depicted in one photograph could have been caused by the knife found behind Baldwin’s house and, therefore, waived any broader argument on this issue on appeal. However, it was not error for the trial court to allow Dr. Peretti’s testimony regarding whether some of the wounds were consistent with having been caused by a knife of the type found behind Baldwin’s house. He stated that pictures of Steve Branch’s and Christopher Byers’s wounds showed wounds consistent with having been caused by a knife with a serrated blade. He testified that he had previously examined the knife recovered from behind Baldwin’s house and that he had examined the serrated pattern of some of the wounds that he found on all three victims. He testified as follows:
Q. Okay. Did you find one pattern on the three victims that would be consistent with having been caused by a knife with that type of serrated pattern?
A. There are injuries consistent with a type of serrated pattern.
On cross-examination, Dr. Peretti testified that he had never stated that the knife found behind Baldwin’s house caused the injuries, but rather had said that a knife of that type was consistent with causing the injuries. He also explained the difference between the pattern left by knives with large serration and small serration, as well as the distortion in the pattern that is left, caused by the elasticity of the skin, the angle of the blade, and the reaction of the body that is being scraped. Dr. Peretti supported his opinion that some of the wounds were consistent with having been caused by the knife recovered behind Baldwin’s house with a factual foundation. As previously discussed, he was qualified as an expert on forensic pathology, and there is no question that he was qualified to testify as to the nature of the victims’ wounds and the causes of the wounds. Any weaknesses in his opinion that some of the wounds were consistent with having been caused by the knife recovered from behind Baldwin’s house went to weight and credibility, rather than admissibility. See Suggs, supra.
Echols argues that the trial court erred in overruling his objection to asking a leading question of Dr. Peretti. The question, which was on redirect, was as follows:
Q. Okay. Now, Dr. Peretti, let me — Mr. Ford asked you about these weapons, if you could say positively that those weapons caused the injuries. And if I understand your testimony yesterday, there was one weapon used on these three boys that was a sharp object such as a knife, correct?
A. That’s correct.
Mr. Ford [Baldwin’s attorney]: I’m going to object to the leading. This is his witness. He is leading his witness in an effort to rehabilitate him.
The Court: He is an expert witness. Go ahead. Overruled.
Mr. Davidson [Echols’s attorney]: We join in that objection.
The Court: Overruled.
Q. There was one weapon that was a sharp object such as a knife?
A. That’s right.
Even if the question were a leading one, an issue we need not decide, we would not reverse. Echols did not request a sanction or other relief when he objected. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we wrote:
The state’s attorney asked a leading question and in effect testified. This was error but it was not prejudicial. Such matters are best handled by the trial court at the time of the improper statement or question. There was no request by the appellant to strike this testimony nor that the jury be admonished. Therefore, we will not consider it on appeal.
Id. at 374, 642 S.W.2d at 874. Similarly, even if the question here were a leading question, the error did not constitute reversible error.
Echols next argues that the trial judge commented on the evidence when he asked defense counsel, “[A]re you getting somewhere with something that is relevant?” and “You are going to assure me of that?” The argument came about as follows. One of Echols’s attorneys was questioning Gary Gitchell, an inspector with the West Memphis Police Department. He attempted to show that the police department failed to conduct the investigation in a creditable manner. The questions were designed to show that the interviews with Echols should have been videotaped, that the photo line-up should have been recorded and conducted differently, that the evidence was not suitably collected and handled, that the tests on a knife were inadequate, and that the audio surveillance of Vickie Hutcheson’s house was inappropriate. The attorney asked Gitchell whether he could find the permission slip allowing the department to set up the audio surveillance. Gitchell asked whether counsel wanted him to try to find it and counsel answered yes. At this point, the trial court asked the two questions about whether counsel was getting to something that was relevant. Echols’s attorney answered in the affirmative, and the trial court said, “All right.” After a bench conference, Echols’s counsel asked Gitchell if he had found the permission slip. Gitchell answered no, and counsel asked if he would find it for them. Echols’s direct examination stopped at that point.
The case of Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981), is on point. There, the trial court did not know the defendant’s theory of defense. During a series of questions by the defense attorney, the State objected. The trial court stated, “What’s puzzling me is what difference does it make? I don’t think it’s relevant is what I’m saying.” Id. at 235, 613 S.W.2d at 99. After an in-chambers conference, defense counsel was allowed to continue with his line of questioning. In affirming the lower court, we wrote:
Article 7, § 23 of our constitution states that judges shall not “charge juries with regard to matters of fact” and so precludes them from commenting on the evidence. The judge is not to influence the jury with regard to the credibility of witnesses or the weight to be given their testimony. The prohibition applies not only to charges, but to colloquies with lawyers in the jury’s hearing. Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950). Clearly, if this inquiry into relevance could influence the jury in any manner, the case must be reversed, but since the appellant was allowed to pursue the line of questioning after the inquiry, we can see no possible inference on credibility, weight to be given, or any other matter. We hold the questioning into relevancy did not amount to a comment on the evidence.
Id. at 234, 613 S.W.2d at 99.
Echols also argues that the trial court’s questions were in rebuke of counsel, and, for that reason, we should reverse. Our case of Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974), is on point on this argument. There, the prosecutrix in a rape case became upset during defense counsel’s examination of her. Defense counsel stated to the court that the prosecutrix might need a few minutes to pull herself together. The trial court replied, “Well, you got her this way. Why don’t you go ahead.” Id. at 152, 515 S.W.2d at 184. Defense counsel moved for a mistrial, arguing that the trial court’s remark was “highly prejudicial.” Id. The trial court denied the motion. On appeal, we affirmed the conviction, and stated:
Prejudicial error is not committed by the court’s remark unless it constitutes an “unmerited rebuke” giving the jury the impression that defense counsel is being ridiculed. Davis v. State, 242 Ark. 43, 411 S.W.2d 531 (1967); McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924). However, prejudice is not shown where the record reveals that the trial judge was merely irritated at defense counsel’s trial tactics. Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969). Although the better practice, as we have often said, is to talk to counsel out of the jury’s hearing, we do not construe this remark as ridiculing the appellant’s counsel. The court merely was stating the obvious. By terse questioning on cross-examination, the defense counsel was properly attempting to weaken the prose-cutrix’s testimony as a witness. The court’s remark certainly did not relate to the merits of the case. At most, it could only be construed as a mere irritation which “does not constitute reversible error whether the court’s irritation was justified or not.” Walker v. Bishop, supra.
Id. at 152-53, 515 S.W.2d at 84-85.
In the present case, the trial judge asked about the relevancy of the continued questioning and seemed to be irritated with counsel’s tactics. Even so, the questions did not constitute an unmerited rebuke of the attorney.
Baldwin argues that the trial court erred when it denied his request to cross-examine Michael Carson about drug and alcohol use. Michael Carson, who had been in juvenile detention with Baldwin, was called to testify that Baldwin told him he had killed the three boys, sucked blood from Chris Byers, and put Byers’s testicles in his mouth. Carson also testified that Baldwin told him he was going to “kick Jessie Misskelley’s ass” because he had “messed everything up.” Baldwin sought to impeach Carson’s credibility by asking him about a medical diagnosis that he was “LSD dependent, marijuana dependent, and alcohol dependent.” Baldwin did not make an offer of proof, and we could affirm this point on that basis. See Ark. R. Evid. 103(a)(2). However, counsel made extensive argument and obviously intended part of the argument to be a proffer. Baldwin argued to the trial court, without any factual statement, that the chemical dependency affected Carson’s ability to distinguish between reality and fantasy. The trial court refused to allow the questioning, and stated that Ark. R. Evid. 608 would allow impeachment with his juvenile adjudications, which Baldwin had already been allowed to do, but the court was “bothered by [the] desire to cross-examine him with regard to specific acts of misconduct involving drugs that may or may not affect his ability to recall.” On appeal, Baldwin contends the ruling was in violation of Ark. R. Evid. 608 and the Confrontation Clause of the United States Constitution. He did not make the Confrontation Clause argument to the trial court; therefore, we do not consider it on appeal. Even constitutional arguments are waived when they are not presented to the trial court. Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994).
Rule 608 of the Arkansas Rules of Evidence provides that a witness may be cross-examined with specific instances of conduct, if probative of the witness’s character for truthfulness. The rule limits the inquiry on cross-examination to specific instances of conduct clearly probative of truthfulness or untruthfulness. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). There was no showing that substance abuse relates to truthfulness or un truthfulness. Further, it does not appear that Baldwin was attempting to show that Carson was on drugs or intoxicated when he heard the statement. In fact, it was most likely impossible for him to show such facts, since Carson was in a juvenile detention facility when he heard Baldwin make the statement, and he had been for some time when he heard the statement. Although the medical diagnosis has not been abstracted, the questions and statements of the trial court indicate there was nothing in it to show that substance abuse had affected Carson’s perception of reality, or his ability to tell the truth. Finally, the trial court asked Baldwin’s attorney if he had a good-faith basis for the questions, and counsel never responded with any fact indicating that the alleged substance abuse went to truthfulness or untruthfulness. The trial court applied the proper tests, which are: (1) whether the question is asked in good faith; (2) whether the probative value outweighs the possibility of unfair prejudice; (3) whether it relates to the witness’s truthfulness. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). Under these circumstances, we cannot say that the trial court abused its discretion in finding that the evidence was not clearly probative of veracity and, as such, would have been unfairly prejudicial. See Maples v. State, 16 Ark. App. 175, 698 S.W.2d 807 (1985).
Echols’s next argument is that the trial court erred in allowing the State to make two cuts in a grapefruit during closing argument. The prosecuting attorney made one cut in a grapefruit with the serrated knife that the State recovered from behind Baldwin’s residence, and then made another cut with the knife that defense counsel implied was used to cut the victims. The second knife had a regular blade. The prosecuting attorney compared the cuts in arguing that the cuts on Byers were like those made by the knife the State had introduced.
This point is governed by Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). There, the appellant argued that the trial court erred in refusing to grant a mistrial or a new trial because the prosecutor argued outside the record and presented evidence not in the record. During his closing argument in the penalty phase, the prosecutor picked up a shotgun that was in evidence and loaded it with five shells in order to show that the gun only held five shells and to argue that the defendant had reloaded his gun after firing two shots at officers. The defendant made a general objection at trial and argued on appeal that there was no proof that the murder weapon in the case held only five shells and that the prosecutor had picked up the wrong gun. In affirming the trial court, we stated:
Demonstrations such as the one performed by the prosecutor are permissible. We have allowed prosecutors to use items such as clothing, rope or documents by way of illustration in their closing arguments for many years. See Derrick v. State, 92 Ark. 237, 122 S.W. 506 (1909); Tiner v. State, 109 Ark. 138, 158 S.W. 1087 (1913). Some leeway is given in closing remarks and counsel are free to argue every plausible inference which can be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). Nevertheless, “[c]losing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom.” Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976). The trial court has a wide latitude of discretion in controlling the arguments of counsel and its rulings in that regard are not overturned in the absence of clear abuse. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980).
Other states have found permissible closing argument where a prosecutor used “similar” material to a rope used to bind a victim to show that the victim might have bound himself, Collins v. State, 561 P.2d 1373 (Okla. Cr. 1977); where a live model and an unloaded pistol were used to demonstrate that shots could not have been fired in the manner claimed by the defendant, Herron v. Commonwealth, 23 K.L.R. 782, 64 S.W. 432 (1901); where a piece of crayon was used to show how the defective muzzle on a revolver could have deformed a bullet fired from the pistol, Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902); where an attorney borrowed a gun from an officer in the courtroom to demonstrate the deceased could not have inflicted a fatal wound upon herself, Peoples v. Commonwealth, 147 Va. 692, 137 S.E. 603 (1927); and where a toy gun was used to prove the fatal wound could not have been inflicted as claimed, Barber v. Commonwealth, 206 Va. 241, 142 S.E.2d 484 (1965). In the Barber case the Virginia court found it was within the sound discretion of the trial court to determine whether the use of the toy pistol should be permitted even though the toy was not shown to be the same size or type as the murder weapon.
Likewise, here the trial judge did not abuse his discretion when he permitted the prosecutor’s demonstration with the shotgun.
Id. at 393-94, 713 S.W.2d at 236. Comparably, in the case now before us, the trial court did not abuse its discretion in allowing the prosecutor in closing argument to compare the cuts made by the two knives.
Echols next argues that the trial court erred when it overruled his objection to a question asked Deanna Holcomb. This argument comes about as follows. During the State’s case-in-chief, Holcomb, who was Echols’s former girlfriend, testified that she had seen Echols with a knife similar to the one found behind Baldwin’s residence. The deputy prosecuting attorney asked her if Echols told her why he carried such a knife. Echols made a general objection, which the trial court overruled. Holcomb answered that Echols told her he carried the knife because he did not feel safe.
We have written that a general objection which was overruled cannot avail upon appeal unless there was no reason whatsoever to admit the evidence, because the trial judge had no way of knowing what was in counsel’s mind. Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992) (quoting United States v. Klein, 488 F.2d 481 (2d Cir. 1973)). On appeal, Echols argues that the ruling was in violation of Ark. R. Evid. 404(b), but he did not advance such an argument to the trial court. It is settled that a party cannot raise an issue for the first time on appeal. Id. Even if it could be said that the trial court should have sustained the objection under 404(b) or for any other reason, we would not reverse, because the alleged error could not have had a substantial effect on the rights of the defendant. Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987). Here, there was already ample evidence that Echols owned knives, and Holcomb did not testify that Echols used the knife, only that he carried it because he did not feel safe.
The next argument comes about as follows. Echols testified in his own defense in the guilt-innocence phase of the trial. On cross-examination, the deputy prosecuting attorney asked him if he knew of any reason why the two witnesses might have fabricated the statements that they overheard him say he committed the murders. Echols objected on the ground that the question shifted the burden of proof. The trial court said that it was going to allow the prosecu tor to ask Echols, “maybe not in the form you asked him ... if he knows of any reason why they would have some bias or prejudice against him.” The prosecutor then asked Echols why the two witnesses would take the stand and fabricate a story about him.
Echols assigns the trial court’s ruling as error. We disagree. The question did not change the burden of proof, and Echols did not ask for a limiting instruction on the matter. The question was designed to compare Echols’s credibility to that of the two State witnesses, and that was appropriate. We have often held that when a defendant takes the stand in a criminal case, his credibility becomes an issue. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).
Also during cross-examination, the State questioned Echols about his manic-depressive illness, and whether it led to an incident in which he tried to claw the eyes out of a student. After a lengthy bench conference, the trial court ruled that it was going to allow the prosecutor to ask Echols if he had extreme mood swings, but that Echols could not be asked about specific instances of conduct unless they were in close proximity to the crimes for which he was on trial. The State did not ask anything more about the incident in which Echols tried to claw the eyes out of a student. The prosecutor changed focus and asked if Echols had an altercation with his father while they were in Oregon, and if it resulted in his immediate return to Arkansas. The trial court ruled that the question was proper to rebut Echols’s testimony that he became violent only toward himself, but not toward other people. The trial court noted that the incident occurred within eight or nine months of the crimes for which Echols was on trial. Echols testified that he had locked himself in his room in Oregon, threatened to commit suicide, was placed in a hospital, and, when his father came to visit him, told his father that he would eat him alive. As a result, he was immediately sent back to Arkansas. Echols argues on appeal that the trial court erroneously allowed evidence of bad character when he had not put his character at issue.
The prosecutor’s questions on cross-examination had independent relevance about Echols’s medication, mood swings, knife collection, and quick return from Oregon. Further, when Echols responded on cross-examination that he did not become violent toward others when he was off his medication, the prosecutor properly brought up the incident with his father to impeach his truthfulness. While there are matters that cannot be used against an accused solely because he is a defendant, these same matters can be used against an accused when he becomes a witness. 3A John Henry Wigmore, Evidence in Trials at Common Law § 889 (Chadbourn rev. ed. 1976 & Supp. 1991). A witness always puts his credibility at issue when he takes the stand. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1986). Here, the question was logically related to matters Echols had brought up himself — his manic-depressive illness and his immediate return to Arkansas. See Shaver v. State, 37 Ark. App. 400, 830 S.W.2d 364 (1994).
Echols and Baldwin, in their next argument involving eviden-tiary rulings, contend that the trial court erred in allowing the State to call Dr. Duke Jennings, a pathologist, to testify about the time of the deaths. The argument comes about as follows. Dr. Peretti, the forensic pathologist first called by the State, testified on direct examination that “I did not deal with the issue of time of death or mention that in my autopsy report.” However, on cross-examination, he testified that, based upon what he knew about the case, and the rigor mortis of the bodies, the time of the deaths was between 1:00 a.m. and 5:00 a.m. on May 6, 1993. This was different from the testimony he had given on direct and different from the testimony he gave in the Misskelley trial, and the testimony was a surprise to the State. On redirect by the State, he noted that rigor mortis can be delayed by cool temperatures, such as from being immersed in cool water for twenty-four to thirty-six hours.
Five days later, but before the State rested its case-in-chief, the deputy prosecutor notified counsel for appellants that the State would call another pathologist, Dr. Duke Jennings, to testify about the time of the deaths. At that time, at a bench conference, appellants objected on the ground that the State had not provided the name of Dr. Jennings as a witness. The deputy prosecutor responded that the State had not anticipated calling Dr. Jennings because it had no reason to think that Dr. Peretti would change his testimony from that he gave in the Misskelley trial. The trial court ruled: “I do not know how you could anticipate a witness that previously testified as to the same facts and circumstances would change his testimony. It seems unfair.” The trial court said that it would allow Dr. Jennings to testify about the time of the deaths.
During the State’s rebuttal evidence, the State called Dr. Jennings to testify about the time of death. Appellants’ counsel asked the court whether the State was being allowed to reopen its case or if Dr. Jennings was a rebuttal witness. The trial court responded that it did not matter because it was discretionary with the court. Dr. Jennings testified that, based upon the information provided, there was no basis for a meaningful estimate as to the time of death. Both appellants assign as error the ruling allowing Dr. Jennings to testify.
The ruling of the trial court was correct. The State could not anticipate that Dr. Peretti would change his testimony and on cross-examination, give testimony that, when coupled with other evidence, would imply that Echols could not have committed the murders because he was at home asleep at the time of the victims’ deaths. Thus, Dr. Jennings’s testimony that it was impossible to estimate the time of death was in direct response to the unexpected estimate of time given by Dr. Peretti on cross-examination. Since the testimony was in response to testimony elicited by the defense, it was genuine rebuttal evidence, and the name of the witness did not have to be disclosed. Schalski v. State, 322 Ark. 63, 67-68, 907 S.W.2d 693, 696 (1995).
Baldwin and Echols both insist that the trial court erred in allowing into evidence the knife with a serrated blade. A diver found the knife in a lake behind the Baldwin residence on November 17, 1993. It was found forty-seven feet from the edge of the water and in line with the Baldwin’s property fine. There is a fishing pier directly behind the Baldwin mobile home, and the knife was found sticking blade-down in mud at the lake’s bottom, thirty-five feet straight out from the pier. The knife was large and had a serrated edge, and it had the words “Special Forces Survival Roman Numeral Two” on the blade. Dr. Frank Peretti testified that numerous wounds found on the victims were made by a serrated blade and were consistent with, and could have been caused by, such a knife.
Deanna Holcomb, who was Echols’s girlfriend in 1991, testified that she had seen him carrying a knife similar to that one, except that it had a compass on the end. James Parker, owner of Parker’s Knife Collector Service in Chattanooga, Tennessee, testified that another knife company he had worked for distributed this type of knife from 1985-87. Through Parker’s testimony, the trial court admitted a 1987 catalog from the other company, which contained a picture of a knife like the one found. That knife had a compass on the end, and it had the words “Special Forces Survival Roman Numeral Two.”
When the State sought to have the knife admitted, both appellants objected on the ground that there was nothing connecting it to the crimes, such as blood, fingerprints, or tissue, and it was not connected to the crime scene. The trial court overruled the objections and stated that there were enough circumstantial links to allow its admission.
The argument is one of relevance, and a trial court has discretion in determining relevance. Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). A trial court’s ruling on relevance will be reversed only for abuse of discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). “When evidence on an issue is circumstantial, it is never irrelevant to put in evidence any circumstance which may make the proposition at issue more or less probable.” Grigsby v. State, 260 Ark. 499, 506, 542 S.W.2d 275, 279 (1976). The State offered testimony that the knife was like the one Echols carried, that it was found forty-seven feet behind Baldwin’s residence, and that it could have caused the injuries. The evidence provided a link to the crimes and made appellants’ identities more probable than without the evidence. Miller v. State, supra; see also Fountain v. State, 275 Ark. 457, 620 S.W.2d 936 (1981); Ark. R. Evid. 401. Thus, the trial court did not abuse its discretion in admitting the knife.
Echols’s and Baldwin’s ensuing argument is that the trial court erred in admitting into evidence the two sticks that were found near the bodies of the victims. Police officers found one of the sticks stuck in the creek bed near the victims. It had a shirt belonging to one of the victims wrapped on the end that was out of the water. This is the larger of the two sticks. This stick appeared in the photographs of the scene, which were admitted without objection, but it was not retrieved by Detective Ridge until Misskelley described the crimes. The smaller stick was found floating in the creek near the bodies and was retrieved during the initial crime-scene search.
Appellants both objected to the introduction of the sticks on the ground that there was no physical evidence that either of them was used as a murder weapon. The trial court overruled the objection and stated that they were relevant and admissible because one of the sticks was jabbed down in the water and had the shirt wrapped around it, the other was found near the bodies, one contained carving, and both had distinguishing marks because it appeared that someone had removed the bark. The court noted that the medical examiner testified that the victims’ head injuries were consistent with blunt trauma similar to that which would have been caused by sticks like these.
Again, the trial court did not abuse its discretion. See Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). The reasons given by the trial court are sufficient to support its ruling on relevance.
Echols argues that the trial court erred when it denied his motion for a mistrial because of a statement that was made during his cross-examination of Officer Bryn Ridge. Echols’s counsel asked Ridge about the crime scene and the stick found there with one of the victim’s shirts wrapped around the end of it. His testimony revealed that the police left the stick at the scene, but retrieved it on July 1, 1993, after Jessie Misskelley gave his statement to police. When Echols’s attorney asked him about the stick, he said, “No, sir, I did not take this stick into evidence until Misskelley’s statement in which he said ....” Echols objected and asked for a mistrial because Ridge had “blurted out” that Misskelley confessed. The motion for a mistrial was denied, but the court instructed the jury to ignore the statement. Echols now contends that the trial court erred by refusing to grant a mistrial.
In Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), we held that an admonition was sufficient to cure any possible prejudice that resulted from an inadvertent reference to a codefendant’s plea of guilty. There, the response was to a prosecutor’s good-faith question. Here, Echols’s counsel asked the question, so good faith is not at issue. Instead, the only question is whether the trial court abused its discretion in ruling that the admonition cured any possible harm. See id. at 288, 862 S.W.2d at 241. Echols has made neither a showing nor a convincing argument that the trial court abused its discretion in finding that the admonition was sufficient. We have often said that a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Instruction Arguments
Both Echols and Baldwin objected to the trial court giving the accomplice instruction. AMI Crim. 3d 401 (Accom plice). They contend that there was no testimony that placed them together on the day of the crime, and, since the jury was instructed to consider the evidence against each defendant separately, an accomplice instruction was precluded. The trial court correctly gave the instruction because there was evidence from which the jury could reasonably find that both defendants said they killed the children; fibers from clothing found in both defendants’ homes were similar to fibers found on the victims’ clothing; the description of the person identified as Domini Teer, who was seen with Echols the night of the murders, also fit the description of Baldwin, who was also very thin and had long hair; Echols and Baldwin were best friends and spent two or three hours together a day; a knife similar to one Echols had owned was found near Baldwin’s residence; sticks similar to the ones both had been seen carrying previously were found at the scene; two different types of knots were used to tie the victims; there were three victims, and there was sufficient evidence from which a jury could have concluded that the murders were not committed by one person. We have said that if there is some evidence to support an instruction, it is appropriate for a trial court to give it. Mitchell v. State, 306 Ark. 464, 862 S.W.2d 254 (1993).
Capital Punishment Arguments
Echols asks us to reconsider our holding in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), and to declare the death penalty to be cruel and unusual punishment. We adhere to our prior holdings. In Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993), we rejected the defendant’s argument that the death penalty was cruel and unusual punishment and stated that both this court and the United States Supreme Court have held that the death penalty is not cruel and unusual punishment. In Wilson v. State, the case referred to by Echols, we rejected the defendant’s argument that life without parole was cruel and unusual punishment and stated that it has long been this court’s holding that sentencing within the statutory limits is not cruel and unusual punishment.
Echols’s next argument involves the statutory overlap between the elements of capital murder and first-degree murder. In this argument his initial predicate is that there is no clear difference between the elements of capital murder, Ark. Code Ann. § 5-10-101 (Repl. 1993), and the elements of first-degree murder, Ark. Code Ann. § 5-10-102 (Repl. 1993). His next step in the argument is to state that the prosecutor has discretion in choosing whether to file a capital murder charge or a first-degree murder charge, and, if capital murder is charged, the jury is then left to speculate about the degree of offense to which it should affix a finding of guilt. The final step in the argument is that it is not until the penalty phase of the trial, after the jury has already determined the defendant to be guilty of capital murder, that the jury considers aggravating or mitigating circumstances. We have already answered this argument, and we adhere to our prior holding.
In Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we said:
Nooner raises the spectre of unconstitutional overlapping between our capital murder statute and first degree murder statute in that the two statutes 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).
Id. at 105-06, 907 S.W.2d at 687. In Nooner, this court also explained that it was acceptable for the jury to not consider aggravating and mitigating circumstances until the penalty phase of the trial. The court stated:
Nooner argues that the definition of capital murder does not sufficiendy narrow the crime for which the death penalty can be imposed. He specifically alludes to overlap between definitions of capital murder and first degree murder, which we have already discussed. The United States Supreme Court has held that the required narrowing of crimes susceptible to the death penalty may occur at the penalty phase of the trial. Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 568 (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 Nooner’s contention.
Id. at 107, 907 S.W.2d at 687-88.
In Echols’s next point, he initially states that Ark. Code Ann. § 5-4-603 (Repl. 1993), requires the jury to impose the death sentence if it unanimously returns certain written findings. From that predicate he argues that the instruction quoting the statute is binding, and a binding instruction is unlawful. Finally, he asserts that if the statute were declared unconstitutional, there would be no need to qualify a jury for the death penalty. Again, the argument is without merit.
Section 5-4-603 of the Arkansas Code Annotated provides in pertinent part:
(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3)Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
(b) The jury shall impose a sentence of life imprisonment without parole if it finds that:
(1) Aggravating circumstances do not exist beyond a reasonable doubt; or
(2) Aggravating circumstances do not outweigh beyond a reasonable doubt all mitigating circumstances found to exist; or
(3) Aggravating circumstances do not justify a sentence of death beyond a reasonable doubt.
Ark. Code Ann. § 5-4-603(a) & (b) (Repl. 1993).
In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101 (1987), we held that Ark. Code Ann. § 5-4-603 does not require a mandatory death sentence, but rather provides specified criteria that must be fully satisfied before the death sentence can be imposed. More recently, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we held:
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.
Id. at 106-07, 907 S.W.2d at 687. The wording of Ark. Code Ann. § 5-4-603 and our case law applying the statute make it clear that the statute does not contain a binding instruction. Consequently, the trial court did not err in denying Echols’s motion to declare Ark. Code Ann. § 5-4-603 unconstitutional.
Echols contends that Ark. Code Ann. § 5-4-604(8) (Supp. 1995) is unconstitutionally vague because it provides that the jury can find an aggravating circumstance upon a finding that a murder was committed in an “especially cruel or depraved manner.” In his argument, he first notes that the prior statute, which provided that the jury could consider the “heinous, atrocious or cruel” nature of the crime was struck down by this court in Wilson v. State, 295 Ark. 683, 751 S.W.2d 734 (1988) as being overbroad because it did not provide a clear standard to distinguish between ordinary and “especially cruel” capital murders. He then states that we have not reviewed the statute since it was amended, and that the “cruel and depraved” language does not provide a genuine narrowing of the types of persons deserving a life sentence from those eligible for the death penalty. In addition to arguing that the statute is unconstitutional on its face, Echols argues that it is unconstitutional as applied to him because “there is insufficient evidence that he inflicted serious physical abuse or did so for a considerable period of time” before killing the three boys, and that there “is insufficient evidence that establishes that Echols intended to inflict mental anguish or did so prior to any killing.”
Pursuant to Ark. Code Ann. § 5-4-603, the death penalty cannot be imposed unless the State can prove the existence of an aggravating circumstance. In the present case, the jury found the aggravating circumstance that the murders were committed in an especially cruel or depraved manner. Section 5-4-604 provides the following regarding “an especially cruel or depraved manner”:
Aggravating circumstances shall be limited to the following:
(8) (A) The capital murder was committed in an especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder.
Ark. Code Ann. § 5-4-604(8) (Supp. 1995).
In Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), we addressed the defendant’s argument that the statutory definition of the aggravating circumstance of “especially cruel or depraved” was void for vagueness on its face and as applied to him. The defendant claimed that the definitions did not provide clear and objective standards to the jury. We rejected the arguments and held:
The General Assembly rewrote this aggravating circumstance in Act 683 of 1991 after this court declared in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), that its statutory predecessor was unconstitutional in violation of the Eighth and Fourteenth Amendments to the federal constitution. The 1991 statutory amendment includes language substantially similar, if not identical, to language upheld as constitutional by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). Greene, 317 Ark. 350, 878 S.W.2d 384. For the reasons stated by the Supreme Court in Walton, our statute is therefore not void on its face.
Id. at 629, 911 S.W.2d at 945. See also Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996). Thus, the trial court correctly denied Echols’s motion to hold Ark. Code Ann. § 5-4-604(8) unconstitutional.
Moreover, the statute is not unconstitutional as applied to Echols. In the present case, the jury was instructed on cruel and depraved manner as follows:
For definition purposes, cruel manner is defined: A capital murder is in an especially cruel manner when as a part of a course of conduct intended to inflict mental anguish, serious physical abuse or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse or torture is inflicted.
Mental anguish is defined as the victim’s uncertainty as to his ultimate fate.
Serious physical abuse is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health or loss or protracted impairment of the function of any bodily member or organ.
Torture is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
Depraved manner is defined as a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder.
There was substantial evidence to support the jury’s determination that the murders were committed in an especially cruel or depraved manner. At least one of the victims had defensive wounds. The autopsy revealed that two of the victims died by drowning, but that their head wounds were so severe that they would have died from them if they had not drowned. There was evidence that these two victims were tortured before they drowned. The third victim bled to death.
Echols contends that the death penalty imposed on him is out of proportion to his conduct and is, therefore, cruel and unusual punishment under the Eighth Amendment. He argues that a proportionality review is a requirement under Arkansas law and that his death sentence should be compared to other death sentences in Arkansas and, in particular, to Baldwin’s sentence to life without parole. He contends that we might infer aggravating circumstances from the nature and extent of the wounds, but argues that mitigating circumstances outweigh aggravating circumstances. Finally, in this argument, he contends that when his death sentence is compared to the life sentences of Baldwin and Misskelley, the death sentence was “freakishly and arbitrarily applied.”
In Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), we stated that we would no longer conduct proportionality reviews of death sentences and cited Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), for the reasons. In Williams, we wrote:
The state has asked this court to conduct a proportionality review which we have done in the past. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). Comparative proportionality review is not constitutionally mandated in every case where the death sentence is imposed. Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). Our Legislature, by enacting recent sentencing procedures, has provided a statutory check on arbitrariness by requiring a bifurcated proceeding where the jury is provided with information on aggravating and mitigating circumstances, and with standards in the use of that information. See Ark. Code Ann. §§ 5-4-103, 5-4-603 — 605 (Repl. 1993). Additionally, our review upon appeal includes a review of the aggravating and mitigating circumstances presented to the jury and a harmless error review of the jury’s findings. See § 5-4-603.
Id. at 352-53, 896 S.W.2d at 772.
Miscellaneous Arguments
Echols states that at the time he filed his brief, the State had not paid his attorneys. He argues that the State’s failure to pay his attorneys violates his right to counsel, due process, and equal protection. Consequently, he contends, his capital murder convictions and death sentences should be reversed and remanded or dismissed. In his argument, he incorporates by reference State v. Crittenden County, 320 Ark. 356, 896 S.W.2d 881 (1995), which concerns the payment of attorneys’ fees in this case. Echols does not support his argument with any citation of authority or convincing argument that his conviction should be reversed for failure by the State to pay attorneys’ fees by the time his brief was filed. We could summarily dismiss the point for failure to cite authority, or make a convincing argument. In Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996), we held:
We do not reach the merits of many of these arguments because they are all essentially one-sentence assertions with no citation to supporting authority and without explanation as to how the cited portions of the constitutions have been violated. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well-taken. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
Id. at 439, 930 S.W.2d at 300-01.
However, the penalty in this case is death, and we prefer to reach the merits of the argument. In Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), the defendant contended on appeal that the “fee cap” statute limiting the amount paid to his appointed counsel was unconstitutional. We explained that we had previously held that the statute limiting the amount of fees that can be paid to attorneys appointed to represent indigent defendants was unconstitutional. We then held that we would not reverse a conviction on the basis of the constitutional inadequacy of the attorney’s fee absent a showing that the defendant was prejudiced by the inadequacy of the fee. Here, there was no showing that Echols was prejudiced in any manner by the State’s failure to pay his attorneys’ fees by the time he filed his brief in this court.
Echols and Baldwin next argue that the trial court committed cumulative reversible error. However, neither has preserved a cumulative-error argument because neither argued the issue to the trial court. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995). Baldwin concedes in his reply brief that he did not make the required objection. Echols’s arguments center around various comments made by the trial court. Because of the sentences in these cases, it has been necessary to make a review of all rulings adverse to appellants, and we note that Echols did not object to any of the individual comments he complains about in this point. Even under Rule 4-3 (h) of the Supreme Court, we do not employ the plain-error rule. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995).
Baldwin next argues that the trial court committed error by having contact with the jury, and erred in refusing to grant a mistrial. The situation here came about as follows. After the guilt phase of the trial was completed, but before the penalty phase had begun, Echols’s attorneys learned that the jury foreman’s daughter had received a death threat. They also learned that another juror had received a threatening phone call.
The trial judge stated that he was aware of the call to a juror because she had told him about it. The judge stated that he asked the juror if the call would affect her in any way, if she wanted to be excused from the jury, and if she wanted a monitor installed on her phone. She answered “no” to all. The judge stated that he questioned the foreman, who responded that neither he nor his family had received a direct threat but that there was something “indirect” that had happened. The judge did not to ask him to be more specific. The foreman said he had had about a “ten second” discussion with the other jurors about the “indirect” matter, but that it was not brought up during deliberations and was never mentioned again. He said it did not affect his ability to render a fair and impartial verdict.
After the penalty phase and in the presence of counsel, the trial court questioned the juror, who confirmed that she had received a prank call, had reported it to the court, and had told the court it would not affect her deliberations. Another juror verified that the court had instructed the entire jury to notify him or the bailiff if they should be threatened in any way. The court then polled the jury, and each juror stated that their deliberations had not been affected, that these things had not been discussed during deliberations, and that no other threats had been discussed during deliberations.
Baldwin contends that the trial court erred by having contact with the jury and not granting a mistrial. We have often written that a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). A trial court’s exercise of discretion will only be reversed when it is abused. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). In matters involving impartiality of jurors, we have consistendy deferred to the trial court’s opportunity to observe jurors and gauge their answers in determining whether their impartiality was affected. Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986). When the record reflects that the trial court received assurance from jurors that they could maintain their objectivity, we have held that refusal to grant a mistrial rests on solid footing. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). Thus, the trial court did not abuse its discretion in refusing to grant a mistrial.
The trial court did commit error in initially discussing the matters with the foreman and the juror out of the presence of counsel, but the trial court subsequendy notified counsel that the discussions had taken place, and then had counsel present when the jurors were questioned. Thus, there was no prejudice.
Baldwin next contends that the trial court erred in granting an ex parte continuance to the State. The argument is based on the following facts. During Baldwin’s defense, the prosecutor informed the trial court that he found a necklace that Echols was wearing when arrested, noticed some red spots on it, and sent it to the crime laboratory for testing, which confirmed that the spots were blood. After the State’s rebuttal, the prosecutor stated that he wanted to reserve the right to reopen the next day if the testing was complete. The court reconvened two days later, on a Thursday, and the prosecutor reported that the laboratory had found that one spot of blood was consistent with the blood of Echols, one was consistent with Baldwin, and one was consistent with Steve Branch. The prosecution asked to reopen the State’s case, subject to appellants’ ability to contact an expert witness. Appellant argued, among other things, that the break in the trial had been the result of an ex parte continuance between the prosecutor and the trial court.
The court asked Baldwin what remedy he wanted, and if he wanted a mistrial. Baldwin said he would decide after the jury was polled about how they got the information about the continuance and whether they knew of the reason for the continuance. After a break, the prosecutor stated to the court that the State understood that a mistrial would be granted as to Baldwin if the State persisted in the necklace evidence; therefore, the State did not want to reopen the case.
Baldwin’s counsel informed the trial court that it would be fine to poll the jury at large. When asked if any of them had learned the reason the continuance was necessary, they answered, “No.” The trial court also inquired as to whether the jury had gained any information from any outside source and whether they had followed the court’s instructions. The jurors responded that they had followed the court’s instructions.
Baldwin’s argument on appeal is that the trial court should have denied the continuance because the prosecutor did not file an affidavit as required by Ark. Code Ann. § 16-63-402(a). This argument was not made to the trial court, and we will not consider it for the first time on appeal. Moreover, the record indicates that Baldwin got the relief he requested, polling the jury, and that, in any event, he did not suffer prejudice because the necklace and the evidence about the blood was not put before the jury. See Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986); Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990).
Baldwin next argues that the State of Arkansas, through the office of the prosecuting attorney, was guilty of such misconduct that it necessitates reversal of the convictions and new trials. He contends that the office of prosecuting attorney was guilty of the following: (1) abuse of subpoena power; (2) failure to disclose Dr. Duke Jennings as a witness; (3) failure to disclose the search of Echols’s personal effects while in jail and failure to notify appellants that it would introduce evidence of Echols’s “doodling” Baldwin’s name; (4) conducting ex parte communications regarding a continuance; (5) conducting a demonstration with a knife cutting a grapefruit during closing. This opinion has already discussed each of the allegations and held they were without merit excepting the alleged abuse of the prosecutor’s subpoena powers. Accordingly, in discussing this point of appeal, we discuss only the alleged abuse of subpoena powers.
Baldwin contends that the prosecutor used his subpoena power in violation of the authority granted by Ark. Code Ann. § 16-43-212 (Repl. 1994). The prosecutor’s subpoena power granted under the statute was passed by the General Assembly to implement the power of prosecutors to bring criminal charges by information. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). It was designed to take the place of questioning by a grand jury. Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981). The emergency clause to the statute states that it was enacted to enable prosecutors to “properly prepare criminal cases.” Cook v. State, 274 Ark. at 248, 623 S.W.2d at 822. The prosecutor may use the subpoena power to investigate and prepare for trial as long as the power is not abused. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, we will reverse a case in which a prosecutor abuses the subpoena power. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985); Cook v. State, 274 Ark. at 249, 623 S.W.2d at 823. Baldwin has made no showing of abuse. All he proved is that the prosecutor subpoenaed three witnesses, who did not testify at trial, and subpoenaed his school records. The trial court found that the subpoenas were for investigation and preparation and did not amount to an abuse of the power. The finding was not in error.
On March 29, 1994, Baldwin filed a motion for new trial “pursuant to Rule 59 of the Arkansas Rules of Civil Procedure.” In addition, Baldwin filed a motion requesting Judge Burnett to disqualify so that “an impartial court could determine whether or not the prosecution was guilty of misconduct in said ex parte conversation.” Judge Burnett issued an order on April 22, 1994, denying the hearing, the motion for recusal, and the motion for mistrial. On appeal, Baldwin argues that he should have been granted a hearing pursuant to Ark. R. Crim. P. 36.22 and that Judge Burnett should have recused because the matter involved factual disputes regarding his conduct.
Baldwin’s motion stated that it was filed pursuant to “Rule 59 of the Arkansas Rules of Civil Procedure.” He advances his argument that the trial court was required to hold a hearing under Ark. R. Crim. P. 36.22 for the first time on appeal, and a party cannot raise an argument for the first time on appeal. Even had it been argued, he would not be entitled to a new trial solely because he did not get a hearing. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). Similarly, the disqualification motion is without merit. The decision to disqualify is within the trial court’s discretion, and we will not reverse the exercise of that discretion without a showing of abuse. An abuse of discretion can be shown by proving bias or prejudice. Id. Baldwin has shown neither bias nor prejudice.
In accordance with Rule 4-3 (h) of the Rules of the Supreme Court, the record has been reviewed for rulings adverse to both appellants, but not argued on appeal, and no reversible errors were found.
Affirmed. | [
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PER CURIAM.
Petitioner Paul R. Parker filed his original action petition against respondent Sharon Priest in her capacity as Secretary of State. Petitioner sought an injunction from placing Proposed Amendment 8 to the Arkansas Constitution on the ballot for the November 5, 1996 General Election and from counting any ballots that might be cast prior to that injunction. Proposed Amendment 8 bears the popular name:
AN AMENDMENT TO AUTHORIZE A STATE LOTTERY, CHARITABLE BINGO AND RAFFLES, AND CASINO GAMBLING AT CERTAIN APPROVED SITES AND UNDER CERTAIN APPROVED CONDITIONS; CREATING THE ARKANSAS LOTTERY AND CASINO GAMBLING COMMISSION TO REGULATE SUCH ACTIVITIES; AND EXEMPTING CERTAIN FOOD ITEMS FROM SALES TAX.
Petitioner challenges the sufficiency of the popular name and ballot tide on the basis of length, complexity, and misleading tendency due to serious omissions. Because we have delivered the opinion of this court in Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996), granting the petition to enjoin the placement of Proposed Amendment 8 on the November 5, 1996 general election ballot, the issues raised in this petition are moot. The petition, therefore, is dismissed. | [
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Andree LAYTON Roaf, Justice.
Appellant Betty Carter Branch appealed an order of the Logan County Chancery Court holding that appellee Kyle Dean Carter was not liable for child-support arrearages which accrued prior to July 20, 1989, because they were barred by the five-year statute of limitations in Ark. Code Ann. § 16-56-115 (1987). The Arkansas Court of Appeals reversed the decision of the chancellor and held that Act 870 of 1991, codified as Ark. Code Ann. § 9-14-236 (Repl. 1993), applied retroactively to expand the statute of limitations for causes of action for delinquent child-support payments not barred on the date of its enactment. Branch v. Carter, 54 Ark. App. 70, 923 S.W.2d 874 (1996). We granted Mr. Carter’s request for review of the Court of Appeals’ decision pursuant to Ark. S. Ct. R. l-2(f). We affirm the Court of Appeals.
On July 19, 1983, Ms. Branch and Mr. Carter were divorced by a decree in which Carter was ordered to pay child support at the rate of $52 per Week. On May 18, 1994, Branch filed a petition for citation and alleged that Carter was delinquent in his support payments. At a hearing on October 26, 1994, the parties stipulated that Carter owed arrearages of $7,404 for the period of July 19, 1,989 to the date of the hearing, and Branch was granted judgment for this amount. The order further provided that the parties would stipulate as to the amount of arrearages that accrued prior to July 19, 1989, and would brief the court on the issue of the statute of limitations as it applied to those arrearages.
On March 2, 1995, the chancellor entered a final order which stated that the parties had stipulated that child-support arrearages had accrued between July 19, 1984 and July 19, 1989 in the amount of $12,251.50. The parties further stipulated that, of this amount, $5,562 had accrued between July 19, 1986 and July 19, 1989. The chancellor ruled that the action for arrearages accruing prior to July 20, 1989 was barred by the statute of limitations.
On appeal, Branch argues in essence that Act 870 of 1991, now codified as Ark. Code Ann. § 9-14-236 (Repl. 1993), applies retroactively so that all causes of action still in existence on the date the Act became effective would benefit from an enlarged statute of limitations. She contends that the five-year statute of limitations relied upon by the trial court only bars the recovery of support payments due prior to July 19, 1986. Although the effective date of Act 870 was March 29, 1991, we agree that the Act applies retroactively to all causes of action not barred on the date of its enactment. Branch made claim to the sum of $5,562 which accrued between July 19, 1986 and July 19, 1989, and we agree that she is entitled to recover this amount.
Because the legislature has in recent years twice changed the statute of limitations with regard to collection of delinquent child support, we must review these legislative enactments and the cases in which we have recently considered the issue of the limitations period applicable to actions for child-support arrearages.
In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), we recognized that prior to 1989 the collection of arrearages accruing as a result of failure to comply with an order of child support was governed by the general five-year statute of limitations. Ark. Code Ann. § 16—56—115 (1987). In 1989, the legislature established a ten-year statute of limitations specifically for the collection of child-support arrearages. 1989 Ark. Acts 525 (codified at Ark. Code Ann. § 16-56-129 (Supp. 1993)). However, because Act 525 did not repeal the general five-year statute and contained no retroactivity provision, we held that the ten-year statute of limitation did not apply retroactively, and that the former statute of limitations controlled for all causes of action already accrued on the date of enactment of Act 525. Sullivan, supra. Consequently, we concluded that “the old five-year statute of limitation is applicable to those support payments due prior to the effective date of the new act, and the new ten-year statute of limitation is applicable to payments accruing after the effective date of the new act.” Id.
In response, the General Assembly enacted Act 870 of 1991, which repealed Act 525 of 1989 and became effective on March 29, 1991. The Act provides in relevant part:
(b) In any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.
(c) Any action filed pursuant to subsection (b) may be brought at any time up to and including five (5) years beyond the date the child for whose benefit the initial support order was entered reaches the age of eighteen (18) years.
(d) No statute of limitation shall apply to an action brought for the collection of a child support obligation or arrearage against any party who leaves or remains outside the State of Arkansas with the purpose to avoid the payment of child support.
(e) This section shall apply to all actions pending as of March 29, 1991, and filed thereafter and shall retroactively apply to all child support orders now existing.
1991 Ark. Acts. 870 (codified at Ark. Code Ann. § 9-14-236 (Supp. 1995) (Emphasis supplied.) The statute of limitations for child support thus now commences with an initial order of support and extends until the child reaches the age of twenty-three.
We were first presented with the opportunity to interpret Act 870 of 1991 in Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), in which we recognized that the legislature has the power to amend statutes of limitation affecting causes of action which are not yet barred. See also Sullivan, supra; Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993). However, in Johnson, at issue was a complaint for arrearages filed on January 2, 1991, prior to the enactment of Act 870, and a ruling by the trial court that Act 870 applied retroactively to revive a cause of action for arrearages which accrued prior to January 2, 1986. Id. We held that the action for arrearages which accrued prior to January 2, 1986 was already barred on the date the petition was filed, and that Act 870 could not retroactively revive a cause of action already barred on the date of its enactment. Id. We thus did not consider the effect of Act 870 on a cause of action for arrearages not yet barred on the date of enactment. Id. Furthermore, our decision in Johnson did not turn on the fact that the complaint for arrearages was filed prior to the passage of Act 870; the decision would have been the same had the complaint been filed on or after March 29, 1991. Id.
We next considered the retroactive application of Act 870 of 1991, in Chunn, supra. As in Johnson, supra, the appellants in Chunn sought by petition filed in September, 1991, to apply Act 870 retroactively to a claim for arrearages which accrued prior to July 16, 1981, more than nine years before the enactment of Act 870. We again held that the new statute could not revive a claim already barred, even though the petition for arrearages was filed by the children entided to support and not the mother.
Moreover, in both Johnson, supra, and Sullivan, supra, we relied upon Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), where we wrote:
[N]o one has any vested right in a statute of limitations until the bar of the statute has become effective. It is also true that the General Assembly may validly enlarge the period of limitations and make the new statute, rather than the old, apply to any cause of action which has not been barred at the time the new statute becomes effective.
(Emphasis supplied.) In Morton, supra, we noted that the critical question is one of legislative intent. We found that the legislature had not made the new statute of limitations retroactive, and that there was in fact nothing to indicate that the legislature intended to do so. Id. We stated: “the amendatory act does not extend the statutory period unless the legislative intention that it do so is expressly stated.” Id. We further commented:
The rationale of our holdings that a statute extending the period of limitations is applicable only to causes of action arising after the act becomes effective, unless expressly made retroactive, is not based upon any vested right in the statute of limitations. It is based upon the strong presumption that a legislative act is not intended to operate retroactively.
Id. See also Ragland v. Travenol Labs., Inc., 286 Ark. 33, 689 S.W.2d 349 (1985).
In the instant case, the General Assembly has clearly mandated that the enlarged limitations period in Act 870 of 1991 “shall retroactively apply to all child support orders now existing.” Thus, the legislature has expressly declared its intent to make the enlarged limitations period retroactive. The legislature, however, only has the power to amend statutes of limitation affecting causes of action which are not yet barred. See Johnson, supra. Because the effective date of Act 870 is March 29, 1991, any cause of action by Branch for arrearages accruing prior to March 29, 1986 is barred, and cannot be revived by its passage. As to support payments due on or after March 29, 1986, the legislature may retroactively expand the statute of limitation for causes of action not yet barred, and that is precisely the effect of Act 870 of 1991.
Carter argues that neither the ten-year statute in effect from July 3, 1989 until the passage of Act 870, nor Act 870 applies retroactively to the arrearages which accrued prior to July 19, 1989. He relies on our holding in Johnson, supra, for this interpretation. However, he has failed to recognize the factual distinction in Johnson, which involved a claim for arrearages which accrued prior to January 2, 1986. Our holding today, that Act 870 does not revive claims for arrearages accruing prior to March 29, 1986, is in harmony with both Johnson, supra, and Chunn, supra.
In sum, it is black-letter law that the legislature may retroactively expand a statute of limitations for a cause of action still in existence at the time the limitations period is expanded. We have so stated in Johnson, supra; Chunn, supra; Sullivan, supra; and Morton, supra. Branch’s cause of action for child-support payments due on July 19, 1986, and thereafter was in existence at the time the statute of limitation was retroactively expanded on March 29, 1991. Thus, the chancellor erred in concluding that her specific claim against Carter for $5,562 was barred by the five-year statute.
Accordingly, we agree with the Court of Appeals that Branch is entitled to recover $5,562 additional support for the period ofjuly 19, 1986 to July 19, 1989, plus the statutory attorneys fees, and interest provided under Ark. Code Ann. § 9-14-223 on the total arrearages owed of $12,966. We affirm the holding of the Court of Appeals. | [
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Per Curiam.
This is the second of two original actions
challenging proposed Amendment 9. On October 21, 1996, this court handed down its opinion in the first case. In that opinion, we held that proposed Amendment 9 was violative of the amendment process provided by Article V of the United States Constitution and, consequently, exceeded the scope of the powers reserved to the people in Amendment 7 of the Arkansas Constitution. We ordered that proposed Amendment 9 not be placed on the ballot, or, alternatively, that the results of the vote on the proposal not be certified. Donovan v. Priest, No. 96-1120 (Ark. Oct. 21, 1996). As a result, this second case has become moot, and, accordingly, we dismiss it. | [
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Per Curiam.
The petitioner, David Lively, has filed a pro se petition for a writ of prohibition to prevent a trial on felony hot-check charges that were filed in Faulkner County Circuit Court on April 26, 1993. Twenty-six months after the filing of the information, on July 10, 1995, Lively moved to dismiss the charges on speedy-trial grounds. After no action was taken on his motion, Lively petitioned this court for a writ of mandamus. The petition became moot when the Trial Court denied the motion to dismiss in an order that was entered on February 28, 1996. Lively v. Hon. David Reynolds, Judge, CR96-22 (March 11, 1996). We find that the State has not met its burden of proof to explain its failure to bring Lively to trial within twelve months of the date the charges were filed, as required by A.R.Cr.P. Rule 28.1, and we grant the writ.
At the time the information was filed, Lively was incarcerated pursuant to a first-degree battery conviction in Pulaski County. A docket entry shows that on the date of the filing of the information, an arrest warrant was issued. The warrant was apparently never served, and there is no indication that anything further was done to bring Lively to trial. The Trial Court’s order denying Lively’s motion to dismiss consists of the following two sentences: “On this day comes the matter of the request of the Defendant, David Lively, for Motion to Dismiss the above-styled cause. The Court finds that the warrant in this case has not been served and the petition is without merit and is hereby denied.”
A defendant charged with an offense and incarcerated pursuant to a conviction for another offense shall be entitled to have the charge dismissed if not brought to trial within twelve months from the time the charge is filed or the time of arrest, whichever occurs first. Ark. R. Crim. P. 28.1(b) and 28.2(b). Since twenty-six months passed from the date the information was filed until the date Lively filed his motion to dismiss, he presented a prima facie case that the speedy-trial rule was violated. The burden then shifted to the State to explain the delay. Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994).
There is no indication in the record that there was a hearing on the motion to dismiss, nor is there any indication that the State filed a responsive pleading in the Trial Court. The only explanation for the delay appears in the State’s response to this petition, where it argues that the twenty-six month period is excludable pursuant to A.R.Cr.P. Rule 28.3(e), which provides in pertinent part:
The following periods shall be excluded in computing the time for trial:
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent when his whereabouts are unknown....
According to the State, Lively’s whereabouts were unknown because there is no way the Faulkner County Prosecutor could have known that Lively was serving time in a state prison on charges that originated in Pulaski County. In his reply brief, Lively argues that the period is not excludable because there is no proof that there was an attempt to serve the warrant. We agree.
In Duncan v. Wright, supra, the State argued that the period of delay in bringing Duncan to trial on hot-check charges was excludable under Rule 28.3(e). The State contended that Duncan’s whereabouts could not be ascertained because he used an alias, but did not offer any proof that the Sheriff attempted to serve the arrest warrant. We identified the lack of any proof of an attempt to arrest as the threshold issue in the case. We found it illogical that Duncan’s alias thwarted an arrest that was never attempted. Accordingly, we granted the writ of prohibition.
Duncan v. Wright is controlling in this case. The State has not offered any proof that the Sheriff attempted to serve the arrest warrant on the hot-check charges.
The writ of prohibition is granted. | [
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ROBERT L. BROWN, Justice.
On April 22, 1996, this court granted the State's petition to review the decision of the Arkansas Court of Appeals to remand this case to settle the record. The question before this court is whether a failure to comply strictly with the terms of Arkansas Rule of Criminal Procedure 24.3(b) regarding conditional pleas of guilty divests the appellate courts of jurisdiction. We conclude that it does, and we dismiss this matter for lack of appellate jurisdiction.
In an information filed on April 14, 1994, the State charged appellant Joel Keith Tabor with criminal conspiracy to deliver a controlled substance (marijuana), criminal conspiracy to deliver a controlled substance (cocaine), and delivery of a controlled substance (cocaine). Tabor filed a motion to suppress his statements given to police officers because at the time he was allegedly acting under the direction and immunity of the FBI and the Harrison Police Department. After a hearing on the issue, the trial court denied the motion.
On May 12, 1995, Tabor pled guilty to the offenses charged, and the trial court sentenced him to serve a term of six years. On June 1, 1995, Tabor filed a notice of appeal. The State moved to dismiss the appeal from the guilty plea because Tabor did not reserve his right to appeal under Ark. R. Crim. P. 24.3(b) by filing a signed statement to that effect. The Court of Appeals granted that motion. Tabor thereafter moved to reinstate the appeal on grounds that he had preserved his right to appeal the suppression issue even though he failed to file the appropriate plea statement. Counsel for Tabor and the Deputy Attorney General stipulated to the existence of the plea statement, and the prosecuting attorney filed an affidavit in which he stated that Tabor’s plea was conditioned on his right to appeal any adverse ruling that might be entered on his motion to suppress evidence. The prosecutor further averred that a plea statement, though unsigned and not filed, was used when Tabor pled guilty and that the trial court reporter made a record of this.
The Court of Appeals, in an opinion joined by three judges with two others concurring and four dissenting, remanded the case to the trial court to settle the record concerning the conditional plea of guilty. The Court of Appeals further stated:
The trial court and parties are further directed to ensure that all material portions of the record that pertain to the purported conditional plea of guilty be included in the record, including all orders by the trial court pertaining to appellant’s claim that he entered a conditional plea of guilty. Upon compliance with these directives, the motion for reinstatement of the appeal may be renewed.
The concurring judges agreed that the record should be setded but added that their preference was simply to reinstate the appeal outright because counsel for Tabor and the Attorney General had stipulated to the existence of the conditional plea agreement. The dissenting judges argued that the majority’s course of action was procedurally barred in that Rule 24.3(b) required that the right of review be reserved in writing. In the view of the dissenting judges, the fact that the State and Tabor stipulated to the existence of the plea agreement does not satisfy the requirements of Rule 24.3(b) or confer jurisdiction on the appellate courts.
On March 13, 1996, the Court of Appeals’s decision was handed down. On April 22, 1996, this court granted the State’s petition for review. On May 9, 1996, the Clerk of the Supreme Court received a letter from the Boone County Circuit Clerk with an order from the trial court filed on April 18, 1996. The trial court’s order states in part:
3.
That, pursuant to an agreement between the defense and the State, upon the denial of the defense motion, the Defendant pled guilty to all three counts directly to the Court without any agreement on sentencing, but reserving the right to appeal the Court’s adverse ruling on the motion to suppress.
4.
That on April 17, 1995, the State wrote up a plea statement reflecting the agreement of the parties, including the reservation of the right to appeal in writing; [hjowever because sentencing was postponed no order was entered that day and the plea statement was neither signed nor filed of record.
5.
That on May 12, 1995, the Court formally sentenced the Defendant to twelve years in the Department of Corrections, suspending six years, with six years to be served concurrently on each count; [sentencing was entered upon the standard forms which contain no written reservation of the right appeal.
7.
That the plea statement prepared but not signed or filed should be signed and filed to supplement the record and document the written agreement of the parties on April 17, 1995.
A copy of a plea statement signed by Tabor and dated April 17, 1996, was attached to the April 18, 1996 order and, according to the trial court’s order, made a part of the record in this appeal.
The State contends in its appeal that no appellate court has jurisdiction over the matter because the requirements of Rule 24.3(b) were not followed. The State further argues that the remand by the Court of Appeals to settle the record has no effect on the jurisdictional issue because there is no provision that allows a trial court to cure a jurisdictional defect following a guilty plea after the time for filing the notice of appeal has expired. In response, Tabor complains that the issue is one of fairness and that the denial of his appeal would violate his Sixth Amendment right to effective assistance of counsel.
We turn first to Rule 24.3(b) which reads:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
The law is well setded that a defendant ordinarily does not have a right to appeal a guilty plea except as provided in Rule 24.3(b). See Ark. R. App. P.—Crim. 1; Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993). Appeals from guilty pleas are typically dismissed for lack of jurisdiction. Scalco v. City of Russellville, supra. Rule 24.3(b) provides the only procedure for an appeal from a guilty plea. Eckl v. State, supra. But if the express terms of Rule 24.3(b) are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v. City of Russellville, supra; Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). Accordingly, this court requires strict compliance with Rule 24.3(b) to convey appellate jurisdiction. Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995).
Two analogous cases have addressed whether the requirements of Rule 24.3(b) were met and the effect of noncompliance: Bilderback v. State, supra, and Burress v. State, supra. In Bilderback v. State, this court refused to reach the merits of Bilderback’s suppression issue because the conditional guilty plea was not reserved in writing by the defendant despite the fact that both the trial court and prosecutor had proceeded as if the plea were conditional. Similarly, in Burress v. State, the trial court made reference to “a document entitled Guilty Plea Statement,” but that document was not contained in the record on appeal. This court, as a result, dismissed the appeal for want of jurisdiction.
In the case now before us, there was no contemporaneous writing by Tabor reserving his right to appeal. Hence, Rule 24.3(b) was not strictly followed, and the Court of Appeals obtained no jurisdiction of the matter. Without jurisdiction, the Court of Appeals had no authority to remand the case to the trial court to settle the record. Moreover, the subsequent order by the trial court with the attached signed plea statement by Tabor entered after remand cannot breathe life into a moribund appeal where no jurisdiction originally vested. The appeal must be dismissed for Tabor’s failure to follow the terms of Rule 24.3(b).
Appeal dismissed. | [
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RITAW. GRUBER, Judge
hOn September 26, 2013, Cesar Michael Figueroa was charged with two counts of rape for acts that were committed on September 2, 2012, in parking lot 14A at the University of Arkansas - in Fayetteville. He was tried before a jury in the Washington County Circuit Court on March 2-3, 2015. On the second morning of trial, he moved for a mistrial on the basis of a discovery violation by the State regarding the existence of another suspect and a search warrant for that suspect’s DNA. Figueroa moved alternatively for a continuance so that he could investigate the information. The circuit court denied the motions, and the defense completed presentation of its case. Figueroa was convicted on both counts and was sentenced to consecutive terms of 360 months’ imprisonment in the Arkansas Department of Correction. He contends on appeal that the circuit court abused its discretion in refusing to grant his motion for a mistrial or continuance. We hold that the court abused its discretion in denying the motion for a continuance. Therefore, we reverse and remand to the circuit |2court.
• The prosecution’s suppression of - evidence favorable to an- accused violates the defendant’s due-process rights, where evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). When the petitioner contends that material evidence was not disclosed to the defense, the petitionér 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 v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). There are three elements of a true Brady violation: the evidence at "issue must be favorable to the accused, either because it is exculpatory or impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prej: udice must have ensued. Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936; Bond v. State, 2015 Ark. 470, at ¶ 3, 2015 WL 8662482. Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady rule. Bond v. State, 2015 Ark. 470, at ¶ 3, 2015 WL 8662482 (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
The prosecutor has a duty to learn Of any favorable information known by others acting on the government’s behalf, including the police, Lacy v. State, 2010 Ark. 388, at ¶ 25, 377 S.W.3d 227, 242 (2010), and must disclose the information in sufficient time to permit the defense to make beneficial use of it. Ark. R. Crim. P. 17.1; Lee v. State, 340 Ark. 504, 509, 11 S.W.3d 553, 556 (2000). When the prosecutor fails to provide information, the burden is on the defendant to show that the omission was sufficient to undermine confidence in the outcome of the trial. Id. at 509-10, 11 S.W.3d at 556. A “reasonable probability” is |sa probability sufficient to undermine confidence in the outcome. Id. at 511, 11 S.W.3d 553, 557 (2000) (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A failure to disclose may be cured by granting a continuance or recessing the trial until appellant’s attorney can have an adequate interview with the witnesses. Rychtank v. State, 334 Ark. 492, 500, 976 S.W.2d 374, 378 (1998).
The victim in this case went out with friends after the university’s first home football game of the season, visiting crowded places along Lafayette, Gregg, Dickson, and West Streets. She decided around midnight to walk home to 623 West Maple, and she let her roommate know she was on her way home. She noticed two men in front of her and two men behind her on a bridge on Lafayette, her cut-through route to Gregg Street and the campus parking lot behind a small parking lot at their house. When she got to the campus parking lot, which she described as unlighted, she noticed “the two men” and a man behind her “in a gray sweatshirt [with] dark hair ... wearing khakis or light-colored pants.” She recounted in her testimony being attacked from behind in the darkness; being thrown to “all fours ... hands and knees”; and fighting, flailing her arms, and screaming until she was choked and her mouth was covered. The attacker grabbed her, pushed her down, and told her to be quiet — threatening to slit her throat and shoot her. She continued to scream, never getting a good look at his face. Her panties were ripped off, her skirt was thrown up, she was pushed and pinned to the ground, and she sustained bruises and abrasions to her knees and right ankle. Her attacker raped her vaginally with his fingers and anally with his penis. When she finally cried and begged him to stop, he said, “Okay. I will.” He then got up and ran away.
|/The victim’s roommate heard a woman screaming, “Help me. Get off of me. Get off of me. Somebody help.” Grabbing a hammer, the roommate ran outside, through an opening in the bushes, and called 911. She saw “two people down in the shadows” — a girl face down and still screaming, her skirt pulled up; and a guy with dark hair and darkish skin, wearing a T-shirt and khaki shorts. She heard sirens on Maple Street approaching Lot 14; saw the guy run toward the other end of the parking lot, to Gregg Street and the railroad tracks; and recognized the victim only when she stood up, covered in blood. The roommate testified that no one else had been there during the attack. Police began arriving within a minute of the attack; they took initial statements from the victim and her roommate, secured the scene, and gathered evidence. The victim underwent a hospital rape-kit procedure and then went with her roommate to the University of Arkansas Police Department (UAPD) to give their written statements. Each described an attacker with dark hair, gray shirt, and lighter-colored pants.
Multiple items to this case were submitted to the state crime laboratory on November 4, 2012. No semen was found on any of them. On the outside of the victim’s skirt was a mixture of DNA from at least three individuals; testing results were inconclusive for comparative pur poses and could not be matched to Figueroa. On other items, where DNA of more than one individual or someone other than the victim was identified, the second components were too limited or inconclusive for comparative purposes. A “tape lift” from the outside of the victim’s underwear that indicated a mixture of DNA was found to have been contaminated by a crime-lab staff member’s DNA profile. Tape lifts of the victim’s shirt | (¡indicated the presence of more than one individual: the victim could not be excluded as a contributor to the minor component of the DNA profile, and the crime lab had no DNA at the time to compare to the major component. The laboratory’s forensic analyst explained that tape lifts help identify “touch transfer type DNA” such as from skin cells, mucus, or sweat; that the State' will search for a match when the lab has a DNA finding but no suspect to compare it to; and that such a -match was made in this case. After matching Figueroa’s oral swabs to DNA in the lab’s database, the analyst was able to state within all scientific certainty.that the major component of the DNA profile from tape lifts of the victim’s shirt originated from Figueroa.
The State’s final witness, UAPD Captain Greg Foster, testified that he was called to Lot 14A off Maple Street soon after midnight on September 2, 2012. He testified as follows about subsequent investigation of the assault. The victim’s general description of her attacker — a man of average build, somewhat stocky, light-brown skinned but not necessarily Hispanic, and in his early twenties — was released to the public, and police eliminated several potential suspects over time. Foster received information in April 2013 about an individual who somewhat resembled the attacker’s physical description, had “certain temperament issues,” and had lived “in an area adjacent to the trail ... off Maple Street” where the attacker was believed to have left the crime scene. Officers eventually located the suspect in DeQueen rather than in Fayetteville. ' They obtained a search warrant in July 2013 to collect DNA swabs from him, went to DeQueen to execute the warrant, and learned that he had fled to Oklahoma. In August 2013, Foster was notified of a CODIS hit on Figueroa in the crime | fiIab’s system. No further action was taken concerning the suspect from DeQueen.
Captain Foster obtained a search warrant to obtain a sample of Figueroa’s DNA for comparison with “what had come back initially from the crime lab” and.“to do a positive ID of matching him exactly.” Figueroa agreed to come with officers to the police department for a voluntary interview on August 26, 2013, which Foster conducted. Foster conducted the interview, obtained swabs from Figueroa’s cheeks, and. submitted the swabs to the crime laboratory. Figueroa admitted in the interview to drinking beer on Dickson Street one night; “hollering” at a girl, likely because of what she was wearing; coming up behind her; attacking her; and threatening her in an attempt to keep her quiet. He said that he did not “enter her.” Police had not publicized that the attack came from behind; that the victim was pushed down; that the attacker threatened her about being quiet or getting hurt; or that the attacker agreed when she asked him to let her go. Defense counsel attempted to show through cross-examination of Captain Foster that before getting Figueroa to confess in the interview, Foster alluded to the attack and sexual assault and to the victim’s being “let go” after she was stalked, grabbed, and followed on Dickson Street.
Figueroa’s counsel made her motion for a mistrial or a continuance the second morning of trial, before proceedings resumed in- open court.. She informed the court that, in following up on Foster’s testimony, she had been given additional information about the suspect and “for the first time this morning” had received a copy of the search warrant for a DNA sample of the suspect in DeQueen, Trinidad Abrego. Counsel had learned of a ^confidential informants telling the. UAJPD that Abrego said he had helped rape someone on the trail in Fayetteville. Counsel also had learned from the State that Abrego allegedly had a reputation for violence and that his DNA sample existed in DeQueen. She stated to the court,
We spoke' to the crime lab this morning, who said they are ready to run evidence software. They can run another test on the inconclusive DNA that was testified to ’ yesterday, the outside of the skirt that had more than two profiles that were both inconclusive. They can' reanalyze that mixture. The crime lab is currently awaiting instructions and also can analyze what is known as YSTR for exclusion purposes.
Captain , Foster’s affidavit for search warrant stated that an unidentified DNA profile recovered from the victim’s clothing was in the. CODIS system and that Foster had,been contacted by a retired Fayette-ville police lieutenant, who had been contacted by an aunt of a person wifh, “personal knowledge of a white Hispanic male known as Trinidad Abrego.” The affidavit further stated .
After-making contact vrith the Aunt I was provided several pieces of information that seemed to be related to the assault in lot 14A. At the time of the assault Mr. Abrego was residing in Chestnut Apartments. The city trail that [sic] leads north from Maple Street approximately 25 yards northeast of lot 14A, leading directly to the apartment complex. On the night of the 'assault, Mr. Abrego had received information' his brother had been killed in gang related activity in California.. Mr. Abrego was extremely angry he could not return to California and started to consume alcohol. He requested sexual rélatioris from an individual ’who" refused his request. Mr. Abrego left the apartment at approximately 2200 hours, stating he was going somewhere to find sex. Mr. Abre-go did not return until approximately 0200 hours. When he. returned he refused. to discuss where he had been.
A subject has come forward as a confidential informant (Cl) who provided additional detail on Mr. Abrego. The Cl stated Mr.- Abrego was partial, nearly exclusive, to anal intercourse. He often used the city trail system to navigate to areas close to the University and Dickson Street. Mr. Abrego made a statement to the Cl that he had helped rape a female on the trail.
|sThe affidavit requested a DNA search warrant based on the similarity in the descriptions of Abrego and the suspect in the campus assault, Abrego’s residence in the proximity of the assault, his statement to the Cl, the proximity of the site of the assault and the. city trail by Maple Street, ¡and the similarity of the attack along with Abrego’s, preference for anal infercpurse.
Counsel requested a mistrial or a continuance for time to investigate, arguing that the'previously undisclosed information'was exculpatory because, if investigated, it could tend to negate Figueroa’s guilt. She argued that the defense had not beén given the information in substantial time to make use of it and that prejudice resulted from the defense’s inability to investigate Abrego and test his DNA. She asserted that some DNA had been corrupted, that the defense was challenging Figueroa’s confession'as false, and that there'was a reasonable probability of a different oút-corrié had- the defense been able to invésti-gate the previously undisclosed information.
The circuit court denied the motion for mistrial or continuance, finding that the undisclosed evidence was not exculpatory. It reasoned that neither, the victim nor her roommate had testified that two people were involved in the assault and that Figueroa’s confession, with details about what happened, had made no claim that two people were, involved. The court reviewed other evidence as follows:
[T]he description given by the roommate was that of a dark skinned, dark haired man in a t-shirt and shorts. This gentleman described in the affidavit for the search warrant is .., a, tanned skinned male, possibly white. Now, I remember the testimony that the assailant ,.. ran off towards the trail... This occurred just off of Maple Street, and 19the trail, let’s see. The Chestnut Apartments ... are on ... Poplar Street .., to get to Poplar on the trail, you would have to go north ... you’d cross North Street, Sycamore Street, and before you would ever get to Poplar.... I.don’t think those facts are at issue....
T just fail to see. that this is exculpatory under the evidence on the record. ... [Njobody knows at this time whether there’s prejudice or not. But it does not appear to me that there would be prejudice since it’s not exculpatory. Again, I rely, for the most' part, on the fact that no one has claimed that there were two people involved in. this occurrence, ... and Mr. Abrego does not claim that it happened he says he helped on the trail.
‘This was close to the trail_ But it was not on the trail. So I do not find that the defense at this time has met .the three elements of the Brady violation test, I do. .not see that it is favorable to the accused.... [Tjthere’s a lot of apartment complexes on that trail. There’s a lot of people that live close by. . And nothing in .this.affidavit puts him off the trail, near the trail.... [T]he claim of the confidential informant is that he helped rape a female on thé trail. So I do not find that this is exculpatory.
The court noted that defense counsel had been surprised by this information on the previous day of trial and had attempted to impeach Foster’s credibility. The court concluded, “I do not find this information, in and of itself, impeaching. It’s the fact that she didn’t have the information that she used to impeach,”
Figueroa contends on appeal that the State committed a reversible discovery violation by failing to disclose exculpatory information about the suspect in DeQueen. He asserts that the undisclosed information was material to his alleged guilt because his defense was innocence and the main evidence against him was touch DNA on the shirt of the victim, who had been in crowded areas, and his own confession, which mirrored the interviewer’s explana tion of the crime. Figueroa maintains that the undisclosed information — the DNA search warrant for another suspect, the accompanying affidavit pointing to the viability of the suspect, and the untested DNA sample of this suspect — constituted exculpatory information tending to negate his guilt and, had it been properly produced, the defense could have | ^investigated the facts in the affidavit and tested Abrego’s DNA sample, which was available for comparison to evidence from the attack. He asserts that prejudice resulted because he was not given the information in time to make use of it before trial and because, once it was discovered, he was denied a meaningful opportunity to investigate. He asserts that the DNA testing, depending on its outcome, could have been used by the defense to bolster his claim of actual innocence.
We find merit in Figueroa’s arguments. The prosecutor failed to timely disclose the existence of Abrego’s DNA sample so that the defense could have the state crime laboratory test it and compare it to DNA on the outside of the victim’s shirt. By denying Figueroa the opportunity to investigate the information in the affidavit and the opportunity to compare the newly revealed DNA with the DNA previously collected, the court denied him the opportunity to bolster his assertion of innocence and to impeach Captain Foster’s testimony. Figueroa has shown a probability that the omission of this information was sufficient to undermine confidence in the outcome of his trial. See Lee v. State, supra.
Reversed and remanded.
Whiteaker and Hoofman, JJ., agree.
. Combined DNA Index System
. The prosecutor had been unawar^ of the DeQueen suspect until the testimony provided by Captain Foster on the first day of trial. Captain Foster stated in that testimony, “This is the first time I’ve [spoken] about this individual outside of my department.”
. Counsel gave no further explanation of “YSTR.”
. The State responded that the contaminated DNA was not the sample in which Figueroa’s DNA was found. | [
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PHILLIP T. WHITEAKER, Judge
|! Appellant Tara Watts challenges the legality of her one-year prison sentence following her guilty plea to the State’s second petition to revoke her probation. For the reasons set out below, we reverse and dismiss.
Watts and a codefendant, Anthony Wayne Watts, were charged in a single information with one Class D felony count of theft by receiving. After the State amended the charge to a Class A. misdemeanor, Tara Watts pleaded guilty to -the amended charge, and' she was placed on probation for one year. A sentencing order was entered on October 2, 2012. The sentencing order listed .the codefendant, Anthony Wayne Watts, as the individual sentenced. It did not list the appellant, Tara Watts, as the individual sentenced. In February 2013, the State filed a petition to revoke Watts’s- probation, alleging that she had failed to report to her probation officer- and had failed to pay court-ordered restitution. At a hearing Lon July 22, 2013, Watts pleaded guilty to the revocation. At that time, the circuit court accepted her guilty plea and stated, “Return to original terms, twelve months’ probation beginning today, $200 fíne plus court costs.” The court also advised Watts that “if you come back in, I’m going to make you spend the. rest of the year .in jail.”
The State filed a second petition to revoke Watts’s probation in June 2014, again alleging her failure to report and failure to pay supervision fees. At a hearing on September 15, 2014, Watts again entered a guilty plea to the revocation. The circuit court sentenced Watts to one year in the Pulaski County Jail, with thirty days of jail credit.- Following entry of the sentencing order, Watts filed a timely notice of appeal and now argues to this court that her one-year jail sentence was illegal.
We previously sent this case back for supplementation of the record and addendum because the October 2-, 2012 sentencing order stemming from the September 2012 guilty plea named Watts’s codefen-dant, Anthony Watts, but did not list Tara Watts as the named defendant being sentenced. Watts v. State, 2015 Ark. App. 439, 2015 WL 5162764. We concluded that, while the omission of the sentencing order might be the result of inadvertence, “we nonetheless must have the proper appellant’s sentencing order in both our record, and addendum, as Watts’s argument on appeal hinges on her first sentence of probation.” Id. at 3.
Following our September 2015 opinion, Watts filed a petition for rehearing in which she asserted that, despite a diligent search by the appellate-records clerk of the Pulaski County Circuit Court, Watts’s court file contains no initial sentencing order. We denied Watts’s petition for rehearing, and Watts subsequently filed a “Notice of Filing of ^Supplement to the Addendum.” In this document, Watts again advised this court that she was unable to supplement the record with a copy of her initial sentencing order because no such order could be found in her circuit court file.
Watts’s case was subsequently resubmitted for this court’s consideration. Although Watts challenges the legality of her one-year jail sentence on appeal, we find it unnecessary to reach the merits of her argument in order to reverse and dismiss her conviction and sentence.
It is well settled that a judgment is effective only upon entry of record. Garduno-Trejo v. State, 2010 Ark. App. 779, 379 S.W.3d 692. This principle, embodied in Arkansas Rule of Civil Procedure 58 and in Supreme Court Administrative Order No, 2, is equally applicable in civil and criminal cases. Bradford v. State, 351 Ark. 394, 401, 94 S.W.3d 904, 908 (2003) (expressly holding that Arkansas Code Annotated section 16-65-121 directly conflicted with court rules and administrative orders and was therefore superseded). In | ¿Bradford, the supreme court held that, where a guilty plea and resulting sentence were never memorialized as a judgment and commitment order and entered of record, there was never an effective judgment of conviction. Id. at 404, 94 S.W.3d at 910.
Likewise, in Garduno-Trejo, supra, this court reiterated that an oral order is “simply not effective until entered of record.” 2010 Ark. App. 779, at 7, 379 S.W.3d at 695-96 (citing Exigence, LLC v. Baylark, 2010 Ark. 306, 367 S.W.3d 550; Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005)). Although Garduno-Trejo is distinguishable from the instant case in that the defendant there was subjected to petitions for revocation based on offenses that occurred before the sentencing order was entered, that case nonetheless stands for the well-established principle that an order is not effective until it is entered of record.
In this case, the record presented to us does not contain an order sentencing Tara Watts to probation. Counsel avers in a pleading to this court that, after a diligent search by the circuit court clerk’s office, it appears that no such order was ever entered by the Pulaski County Circuit Court. Because an effective judgment of conviction was never entered, the circuit court erred in granting the State’s petitions for revocation, and the revocation must be re versed and dismissed. See Garduno-Trejo, 2010 Ark. App. 779, at 8, 379 S.W.3d at 696 (reversing and dismissing).
Reversed and dismissed.
Abramson and Virden, JJ., agree.
. Watts did, however, supplement the addendum with a copy of the judge’s electronic signature page, which our previous opinion noted was also missing from the addendum. Watts, 2015 Ark. App. 439, at 2, 2015 WL 5162764,
. This rule provides, in pertinent part, that “[a] judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2.” Ark. R. Civ. P. 58.
. This order, in turn, provides that the clerk "shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word ‘filed.’ A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.” Ark. Sup. Ct. Admin. Order No. 2(b)(2).
. Section 16-65-121 provided that a judgment rendered in open court was effective from the date it was rendered. | [
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Per Curiam.
Appellant Roger Hairston, by and through his attorney, has filed a motion for belated appeal. His attorney, Matt Keil, states in the motion that, based on his error, the appeal was not timely filed.
This court clarified its treatment of motions for rule on the 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.” McDonald v. State, 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, Mr. Keil 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. | [
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Per Curiam.
Appellant Luwalhati Admana Johnson, aka Luwalhati Lalota, acting pro se, has filed a motion for rule on clerk asking this court to direct the clerk of the court to file her record and have her apipeal docketed. The clerk refused to docket her appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure - Civil 5(b)(1)(C). Appellant explains that by its plain meaning Rule 5(b)(1)(C) does not make a hearing mandatory because all parties may have the opportunity to be heard either at a hearing or by responding in writing. If neither a hearing nor a response in writing takes place, the Appellant maintains that a waiver has occurred and the extension for time may be granted.
This court has held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006). Rule 5(b)(1) provides:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rale or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required by its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
Ark. R. App. P.-Civil 5(b)(1).
On August 8, 2006, the circuit judge entered an order extending the Appellant’s deadline to file the record to October 10, 2006. The order extending the time to file the record did not include a statement that all parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing, as required by Rule 5(b)(1)(C). However, the order did state that a hearing was not requested and the prosecuting attorney did not file an objection. The record, which was originally due on August 8, 2006, was tendered with the clerk’s office on August 24, 2006.
We have held that “there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality.” Roy, 367 Ark. at 179, 238 S.W.3d at 119; see also White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006). An order granting an extension of time must show that all parties have had an opportunity to be heard, either at a hearing or by responding in writing. Ark. R. App. P.-Civil 5(b)(1)(C). Failure to comply with either option explained in Rule 5(b)(1)(C) does not constitute a waiver. Accordingly, we remand this matter to the circuit court for compliance with Rule 5(b)(1)(C). See White, supra. | [
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Annabelle Clinton Imber, Justice.
Clifford Coonrod d/b/a Coonrod Construction Co., petitions this court for a writ of prohibition in response to the circuit court’s denial of his summary-judgment motion. Coonrod argues that the circuit court does not have jurisdiction to decide whether the Workers’ Compensation Act, as codified at Ark. Code Ann. §§ 11-9-101 through 11-9-1001 (Repl. 2002 & Supp. 2005), bars Respondent Ronnie Seay from filing suit against him for negligence. In support of his argument, Coonrod asserts that the Workers’ Compensation Commission has exclusive jurisdiction to determine whether an employer-employee relationship existed between Seay and him. We agree and therefore grant, the writ.
In 2003 Coonrod and Johnson Employer Support Services (JESS) entered into a “Subscriber Service Agreement.” Pursuant to the agreement, JESS performed the following services for Coonrod: (1) the hiring of workers for Coonrod’s use; (2) the processing and payment of wages to the workers being used by Coonrod; (3) the collection, reporting and payment of state and federal payroll taxes; (4) the administration and payment of employee benefit plans; and (5) the maintenance of a workers’ compensation insurance policy covering the workers at Coonrod’s constructions sites. In return, Coonrod was obligated to pay JESS a service fee that consisted of (1) gross employee earnings, (2) federal and state mandated employee benefits, (3) administrative fees, and (4) a portion of the premium for workers’ compensation insurance. Coonrod also was responsible for supervising and directing the workers and for maintaining records of the workers’ hours; additionally, Coonrod had the right to terminate or suspend an employee and to increase wages.
Ronnie Seay was one of the workers covered by the service agreement. While working at a Coonrod construction site, on July 26, 2003, Seay was injured as he attempted to load a bulldozer onto a trailer. Seay filed a worker’s compensation claim and received benefits that were paid by JESS. He also filed an action against Coonrod in the Miller County Circuit Court, alleging that Coon-rod was negligent in maintaining the bulldozer and in failing to provide a safe work environment. The damages requested in the circuit court action included medical costs, lost wages, bodily injury, pain and suffering, and mental anguish.
In response to the lawsuit, Coonrod immediately filed a motion for summary judgment, alleging that Seay’s claims were barred by the exclusivity provision of the Workers’ Compensation Act, Ark. Code Ann. § ll-9-105(a) (Repl. 2002); therefore, the circuit court did not have subject-matter jurisdiction over Seay’s claims. Among the exhibits attached to the summary-judgment motion was an affidavit signed by a JESS official stating that Coonrod and JESS were co-employers of Seay and that Coonrod paid part of the premium for workers’ compensation insurance. The circuit court denied the motion.
Coonrod now petitions this court for a writ of prohibition on the grounds that the circuit court was wholly without subject-matter jurisdiction to determine whether an employee-employer relationship existed between Coonrod and Seay. We therefore have jurisdiction over this case pursuant to Ark. Sup. Ct. R. l-2(a) (2006).
A writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. This court confines its review to the pleadings in the case. Id. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id.
The first requirement for granting a writ of prohibition is that the circuit court must be wholly lacking in jurisdiction over the case. Pursuant to Ark. Code Ann. § 11 — 9—105(a), once an employee avails himself of the rights and remedies available to him under the Workers’ Compensation Act, those rights and remedies shall be exclusive of all other rights and remedies. Coonrod asserts that he and JESS are co-employers of Seay, and because Seay already received workers’ compensation benefits from JESS, his negligence claims against Coonrod are barred by section 11-9-105(a). Seay, however, disputes Coonrod’s assertion, insisting that JESS is his only employer. Citing VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), and its progeny, Coonrod contends that the question of whether an employer-employee relationship existed between him and Seay, and thus whether the Act applies here, is a threshold decision exclusively within the jurisdiction of the Workers’ Compensation Commission.
Originally, our court recognized concurrent jurisdiction between the circuit courts and the Commission to decide whether the Act applied in a given case. However, in VanWagoner v. Beverly, supra., we recognized that our concurrent-jurisdiction approach was resulting in duplicative litigation, and consequently, the approach was counter to the primary purpose behind the workers’ compensation system — “to achieve simplicity and speed in the disposition of cases.” Id. at 15, 970 S.W.2d at 812. We therefore abandoned that approach, holding that
the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.
Id. at 16, 970 S.W.2d 810.
Following VanWagoner, our court decided in the case of Stocks v. Affiliated Foods Southwest, Inc., 363 Ark. 235, 213 S.W.3d 3 (2005), that the factual question of whether an employer-employee relationship exists between the parties 'is a preliminary issue solely within the jurisdiction of the Commission. Id. Most recently in Moses v. Hanna’s Candle Company, 366 Ark. 233, 234 S.W.3d 872 (2006), we held that the question of whether a temporary worker is an employee of the company where he or she is working at the time of an injury, rather than an employee of the temporary agency, is an issue within the Commission’s exclusive jurisdiction to decide. Id.
Here, as in Stocks, the only issue presented by Coon-rod’s summary-judgment motion was whether an employer-employee relationship existed between him and Seay. Also, the situation here is much like that in Moses because Seay argues that JESS was his only employer and he was merely a temporary worker at Coonrod’s construction site. Based on this court’s line of decisions beginning with VanWagoner, and continuing through Stocks and Moses, we conclude that the Workers’ Compensation Commission has exclusive original jurisdiction to determine whether Coonrod was Seay’s employer and whether Coonrod was thereby immune from suit under the Act. Accordingly, we hold that, as a matter of law, the circuit court was wholly without jurisdiction to make that determination.
Seay nonetheless suggests that the circuit court did have jurisdiction to determine whether he was Coonrod’s employee under an exception set forth in VanWagoner. The VanWagoner exception only applies to a narrow category of cases where the facts are so one-sided that it is clear the Act does not apply as a matter of law. Seay claims the facts in this case are one-sided in favor of a finding that JESS is his only employer. Based on this claim, Seay argues that the circuit court did have jurisdiction to make that factual determination as a matter of law.
Seay’s argument is misplaced. In Merez v. Squire Court Limited, 353 Ark. 174, 114 S.W.3d 184 (2003), the issue before this court was whether Merez was an employee of Squire Court or an employee of Carson Equities, LLC, an independent general contractor, and the facts were in conflict as to who was Merez’s employer. Id. For example, Merez received paychecks from both Squire Court and Carson, but Squire Court never directed Merez’s work. Id. Because conflicting facts existed, we held that the facts were not so one-sided as to demonstrate, as a matter of law, that the Act did not apply. Id.
Similarly, the facts here are in conflict as to who was Seay’s employer at the time of his injury. JESS handled the administrative tasks, such as the hiring and issuing of paychecks and benefits; whereas, Coonrod was responsible for supervising and terminating workers, as well as keeping track of workers’ hours. Thus, we cannot say that the facts in this case are so one-sided that one can determine, as a matter of law, that the Act does not apply. Consequently, we conclude that the circuit court was wholly without jurisdiction.
The second requirement for granting a writ of prohibition is that no other remedy be available to the petitioner. As a general rule of appellate procedure, a denial of a motion for summary judgment is not subject to review on appeal, even after a trial on the merits. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). This court, however, has granted writs of prohibition when a circuit court denies a motion for summary judgment that is based upon the assertion that a party is immune from suit under the exclusivity provision of Ark. Code Ann. § ll-9-105(a). See Wenco Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000). Furthermore, in Wenco Franchise Management, we stated that “[w]here it is clear that the lower court is encroaching on the Commission’s jurisdiction, we will grant the writ.” Id. at 88, 13 S.W.3d at 904 (citing Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996)).
Here, Coonrod has no remedy other than a writ of prohibition because the denial of his motion for summary judgment is not subject to review on appeal, even after a full trial on the merits. McElroy v. Grisham, supra. Along with depriving him of any remedy on appeal, the circuit court’s denial of Coonrod’s motion effectively eliminated his primary defense — immunity from suit under Ark. Code Ann. § ll-9-105(a). Finally, the circuit court clearly encroached on the exclusive jurisdiction of the Workers’ Compensation Commission when it made the preliminary deter mination that Coonrod was not Seay’s employer and thus not immune under the Act. Accordingly, we grant the writ of prohibition.
Writ granted.
Although Coonrod has named the defendant Ronnie Seay as the respondent to his petition, prohibition lies to the circuit court. Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004). Accordingly, we treat the petition as one against the lower court. Id. | [
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Per Curiam.
A jury found appellant William Greg Smith guilty of engaging children in sexually explicit conduct for use in visual or print medium and sentenced him to 240 months’ imprisonment in the Arkansas Department of Correction. This court affirmed the judgment. Smith v. State, 363 Ark. 456, 215 S.W.3d 626 (2005). Appellant timely filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied. Appellant has lodged an appeal of that order in this court, and briefs have been filed. Appellant, however, has now filed a motion to dismiss the charge, in essence requesting the same relief requested in his brief, but urging we not remand in order to effect that relief.
In his motion, appellant argues that the statute under which he was charged, Ark. Code Ann. § 5-27-303(a) (2003), includes a required element that the criminal act be for pecuniary profit. This question is the core issue in the only point raised in his appeal, and, as it is clear on the record before us that it is an issue on which he cannot prevail, we dismiss the appeal. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam); Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).
In his petition, appellant alleged ineffective assistance of counsel because counsel did not challenge the sufficiency of the State’s proof based upon the lack of evidence that the photographs were taken for pecuniary profit. Appellant’s argument, in his petition and in his brief, is based upon our holding in Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993), that “for pecuniary profit” is a required element of proof under the statute. As the trial court found in its order, the legislature responded to that holding with changes to the applicable law.
Act 1209 of the 1995 Acts of Arkansas, § 1, amended the statute discussed in Richardson, Ark. Code Ann. § 5-27-302(3) (1987), which provides the definition of the term “producing” as used in section 5-27-303. With that amendment, section 5-27-302(3) no longer contains any reference to pecuniary profit. Therefore, as a result, the term “producing” in section 5-27-303 no longer includes “for pecuniary profit” as a required element of proof, as it did in Richardson.
In this case, the information indicates that the charge against appellant was alleged to have been committed in 2004, well after amendment of the statute. Any challenge by counsel based upon this argument would have failed because proof that producing was for pecuniary profit was not a required element of the charge against appellant. Counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). As it is clear that appellant cannot succeed on his claim, we dismiss the appeal and the motion is moot.
Appeal dismissed; motion moot. | [
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Tom Glaze, Justice.
On April 6, 2005, Appellant Barbara Pakay filed suit against Appellee Tabatha Davis. Barbara alleged that she had entered into a contract for deed with Tabatha, and the 8% interest rate she was charged was usurious under Article 19, Section 13 of the Arkansas Constitution, also known as Amendment 60. Amendment 60 established that Arkansas’ maximum lawful rate of interest on any contract shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract. Tabatha answered, contending that the interest rate in the parties’ contract was not usurious. Barbara later amended her complaint to also assert her claim against Tabatha’s husband, Bryan Davis. Tabatha and Bryan both moved to dismiss the amended complaint, alleging that Bryan was not a party to the contract. On July 6, 2005, the circuit court dismissed Barbara’s claim against Bryan.
On September 12, 2005, Tabatha filed a motion for summary judgment in which she submitted that, because the Federal Reserve Discount Rate had been abolished effective January 9, 2003, prior to Barbara and Tabatha’s contract, there was no longer a way to calculate what constitutes usury under the Arkansas Constitution. In reply, Barbara contended that, as a matter of law, the Federal Reserve Board replaced the Federal Reserve Discount Rate with the “primary credit rate.” Having decided that legal issue, Barbara submitted that because the primary credit rate was 2.00% at the time of the parties’ contract, the maximum interest rate permissible under Arkansas law was limited to 7.00% (no more than 5% per annum above the primary credit rate). Accordingly, Barbara asserted that the 8% interest rate charged by Tabatha was usurious.
The circuit court granted Tabatha’s motion for summary judgment. From that order, Barbara timely appeals two issues: (1) the trial court erred in dismissing Bryan from the lawsuit and (2) the trial court erred in granting Tabatha summary judgment. We reverse the circuit court on both points.
We begin with Barbara’s second point on appeal, wherein she seeks to clarify what standard, if any, should be used to determine what is usurious under Amendment 60 to the Arkansas Constitution now that the Federal Reserve Discount Rate no longer exists. As noted earlier, the circuit court granted Tabatha’s motion for summary judgment, finding that, absent the Federal Reserve Discount Rate, there is no longer a standard in Amendment 60 to limit interest rates and determine what constitutes usury.
Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006); Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002). 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. Hanks, supra. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
While Barbara and Tabatha appear to agree on most of the essential facts, it is the law that is in dispute in this case. Both parties admit that they willingly entered into a contract for deed, wherein Tabatha charged Barbara $79,000 for real property. Moreover, the parties also admit that Barbara was charged 8% interest on that land for a period of300 months. On appeal, however, Barbara contends that, because there is no longer a Federal Reserve Discount Rate to calculate the maximum lawful rates of interest as provided by Amendment 60, the Federal Reserve Board’s “primary credit rate” is the gauge by which we determine what is usury under our Constitution. In reply, Tabatha submits that, because the contract for deed was entered into after the abolition of the Federal Reserve Discount Rate, Amendment 60 no longer provides a maximum interest rate. At the summary judgment hearing, the circuit court reasoned:
I’m gonna grant the motion for summary judgment... . Article 19, Section 13 of the Arkansas Constitution establishes the maximum lawful rate of interest at “5% above the Federal Discount Rate at the time of the contract. ” But the Federal Discount Rate was abolished prior to the date of this contract. And I’m aware of the Attorney General’s opinion cited that the Attorney General basically said that the Supreme Court would look for some way to save the Constitutional Amendment by trying to adopt — there’s more than one new discount rate that substitutes for this Federal Discount Rate.
But the Federal Discount Rate cited in Article 19, Section 13 of the Constitution — it’s capitalized. It specifically refers to the Federal Discount Rate. It says it “means the Federal Reserve Discount Rate,” and it’s capitalized, “on a ninety-day commercial paper in effect in a Federal Reserve District.” Well, that Federal Discount Rate has been abolished. . . .
Now, the Supreme Court may well want to do that but, I think based on what I’m seeing here, I cannot rewrite the Constitution of this State. And I’m not going to. . . . Now, they could have done this a lot of ways when they passed this amendment. They could have said the Federal Discount Rate and any other similar rate hereafter adopted, but they wanted to hang their hat on this hook. And the hook isn’t on the wall anymore. So you can’t hang the hat there anymore.
I’m just interpreting that amendment to say that that Discount Rate no longer exists. It is just not applicable to this case and I don’t guess any other case.
We reverse the circuit court’s order of summary judgment.
Article 19, section 13, of the Arkansas Constitution (Amendment 60) provides in relevant part as follows:
(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person who does so shall be subject to such punishment as may be provided by law.
(c) (ii) “Federal Reserve Discount Rate” means the Federal Reserve Discount Rate on ninety-day commercial paper in effect in the Federal Reserve Bank in the Federal Reserve District in which Arkansas is located.
Ark. Const, art. 19, § 13 (emphasis added).
Admittedly, the plain language of Article 19, section 13 of our Constitution (Amendment 60) provides that the maximum rate of interest charged shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate. However, as of January 9, 2003, the Federal Reserve Board abolished the Federal Reserve Discount Rate. See 12 CFR § 201.4 (2003). At the same time, however, the Board adopted the primary credit rate, the secondary credit rate, and the seasonal credit rate. Id.
In construing provisions of the Arkansas constitution, we endeavor to effectuate as nearly as possible the intent of the people (as it may be ascertained from the language of the provision) in passing the measure, and, if necessary, as a means of attaining that end, a liberal interpretation will be warranted. See Raney v. Raulston, 238 Ark. 875, 878, 385 S.W.2d 651, 653 (1965) (emphasis added) (citing Walton v. Arkansas Construction Commission, 190 Ark. 775, 80 S.W.2d 927 (1935)). Without question, when the people of this State adopted Amendment 60, their intent was to implement limits on interest rates, not eliminate such limits. Amendment 60’s plain language illustrates that intent by establishing an objective gauge in order to determine what is usurious under the law. While the Federal Reserve Board abolished the Federal Reserve Discount Rate, it merely substituted a different, but similar, measurement in its place. In this respect, the primary discount rate offers, much like the Federal Reserve Discount Rate offered, a means by which rates of interest can be limited. Thus, while the Federal Reserve Discount Rate has been abolished by the Federal Reserve Board, the Board adopted a gauge that can apply in its place.
Under our standard of review of constitutional provisions, as a means of attaining the clear intent of the people, a liberal interpretation is warranted. Raney v. Raulston, supra. In order to comply with the intent of the people, our obligation is to apply some standard, regardless of its name or title given by the Federal Reserve Board. Thus, we conclude that under our standard of review for such a constitutional provision, the circuit court erred in concluding there is no longer a standard to gauge usury under the law. The primary credit rate should be applied in the place of the Federal Reserve Discount Rate. This conclusion requires the circuit court on remand to determine what the primary credit rate was on the date that Barbara and Tabatha entered their contract. See Bank of America v. C.D. Smith Motor Co., 353 Ark. 228, 250, 160 S.W.3d 425, 438 (2003).
Barbara’s next argument is that the circuit court should not have dismissed Bryan from the lawsuit. We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Hanks v. Sneed, supra. In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff s favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
Barbara’s amended complaint alleged that Tabatha and Bryan were husband and wife and owned the real property in question. Barbara also alleged that Tabatha and Bryan were both jointly and severally responsible for Tabatha’s actions. However, Bryan strongly argued he was not a party to the contract dispute. As previously mentioned above, the circuit court dismissed Bryan from the lawsuit. Based on the facts as alleged in Barbara’s amended complaint, we conclude that the circuit court erred.
A case that is instructive on this point is Griffin v. Flemister, 252 Ark. 907, 481 S.W.2d 718 (1972). In that case, the Flemisters, sellers of real property, sought an action for specific performance against the Griffins, potential buyers of real property. Leading up to the lawsuit, Mrs. Griffin, with her husband’s authority, offered $72,000 for the home, but that offer was rejected by the Flemisters. Later, without Mr. Griffin’s authority, Mrs. Griffin made the Flemisters a counteroffer for $80,000. The $80,000 offer was accepted, but Mr. Griffin, after finding out about his wife’s $80,000 offer, declared that he did not want to be bound by that offer. In concluding that Mr. Griffin was bound to the contract with the Flemisters, we stated the following:
“The husband is not an agent for the wife solely by reason of the marital relationship. But slight evidence of actual authority is sufficient proof of the agency of the husband for the wife in matters of domestic nature.” 41 C.J.S. Husband and Wife § 70 p. 549. Agency may be established by circumstantial evidence. Williams v. O’Dwyer & Ahern Company, 127 Ark. 530, 192 S.W. 899; Sidle v. Kaufman, 345 Pa. 549, 29 A.2d 77, 81. In the Sidle case, the court said: “The relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts, or conduct clearly implying an agency . . . ; but such relation is competent evidence when considered with other circumstances as tending to establish the facts of agency and where there has been other competent evidence tending to the same end.” And, it is said in Restatement of Agency, § 22: “Neither husband nor wife by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband and wife.”
Griffin v. Flemister, 252 Ark. at 910, 481 S.W.2d at 720 (quoting Cooper v. Cooper, 225 Ark. 626, 284 S.W.2d 617 (1956)). The Griffin court continued as follows:
With further regard to agency, in the early case of Johnson v. Arkansas Foundry Co., 173 Ark. 1181, 292 S.W. 373 (omitted from Arkansas Reports because ‘of no value as a precedent’), this court stated:
“As we have said, the only question in the case is a question of agency, a question of fact, and Ruby Johnson testifies that she was the agent; and this court has said:
‘The existence of an agency cannot be shown by proving the acts and declarations of the agent, but the agent may himself testify in regard to his agency and the extent of his authority.’ ” De Camp v. Graupner, 157 Ark. 578, 249 S.W. 6.
This court has held many times that, while you cannot prove agency or the extent of an agent’s authority by the declarations or the acts of an agent, you can prove agency by the agent himself.
Griffin v. Flemister, 252 Ark. at 910-11, 481 S.W.2d at 721. Based on the above-quoted analysis, the Griffin court concluded that Mr. Griffin was bound to the contract entered into by his wife. The facts supported a finding that Mrs. Griffin was acting as her husband’s agent.
In the instant case, assessing the allegations in the amended complaint, the circuit court should not have dismissed Bryan from the suit because, under agency principles, Bryan could be bound to the contract entered into by his wife. Of course, to establish an agency relationship, the circuit court would have to examine the evidence. However, by dismissing Bryan from the action, such dismissal left no room for the examination of all relevant evidence on this agency issue. In short, only the facts of the case can reveal whether Tabatha was acting as an agent on behalf of herself and Bryan; however, if she was, Bryan would surely be bound to the terms of the contract.
We note that Tabatha relies on Gardner v. Bullard, 241 Ark. 75, 406 S.W.2d 368 (1966), but that case is factually distinguishable. In that case, twenty men signed their names on a petition opposing a drainage district. However, their wives did not sign the petition, and we concluded on appeal that the wives were not parties to the petition. Id. The Gardner case, unlike the one now before us, did not involve a contract, whereby a husband or wife may act as an agent on the behalf of the other. See Griffin v. Flemister, supra. More so, the signing of a petition does not lend itself to agency principles like negotiating a contract. We find no merit in Tabatha’s argument, and reverse the circuit court on this point.
Reversed and remanded.
The Federal Reserve Board’s website explains the various types of credit rates available:
The discount rate is the interest rate charged to commercial banks and other depository institutions on loans they receive from their regional Federal Reserve Bank’s lending facility — the discount window. The Federal Reserve Banks offer three discount window programs to depository institutions: primary credit, secondary credit, and seasonal credit, each with its own interest rate. All discount window loans are fully secured.
Under the primary credit program, loans are extended for a very short term (usually overnight) to depository institutions in generally sound financial condition. Depository institutions that are not eligible for primary credit may apply for secondary credit to meet short-term liquidity needs or to resolve severe financial difficulties. Seasonal credit is extended to relatively small depository institutions that have recurring intra-year fluctuations in funding needs, such as banks in agricultural or seasonal resort communities.
The discount rate charged for primary credit (the primary credit rate) is set above the usual level of short-term market interest rates. (Because primary credit is the Federal Reserve’s main discount window program, the Federal Reserve at times uses the term “discount rate” to mean the primary credit rate.) The discount rate on secondary credit is above the rate on primary credit. The discount rate for seasonal credit is an average of selected market rates. Discount rates are established by each Reserve Bank’s board of directors, subject to the review and determination of the Board of Governors of the Federal Reserve System. The discount rates for the three lending programs are the same across all Reserve Banks except on days around a change in the rate.
The Federal Reserve Board, <http://www.federalreserve.gov/monetarypolicy/discountrate.htm> (Oct. 9, 2006). See also 12 CFR § 201.4 (2003). Thus, it is clear to us that the primary credit rate, in comparison with the secondary credit and seasonal credit rate, is most like the former Federal Reserve Discount Rate.
In 2002, the State’s attorney general issued an opinion, published on this exact issue, reasoning that the primary credit rate would effectively replace the Federal Reserve Discount Rate in Amendment 60. In reaching this decision, the attorney general evaluated other instances in our case law where strict compliance with a constitutional amendment was impossible. White v. Hankins, 276 Ark. 562, 637 S.W.2d 603 (1982); Drennan v. Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959). The attorney general’s opinion noted that, in those instances where strict compliance with a constitutional amendment was impossible, our supreme court has always looked at the intent and purpose of the amendment rather than the literal language. However, the attorney general’s opinion assumes that there can no longer be strict compliance with Amendment 60. In other words, the attorney general’s opinion suggests that there has been a substantive change in the existing constitutional provision. Yet, with respect to Amendment 60, there has not been a substantive change, as there is still a gauge in place by which courts can determine what is usurious under the law.
As mentioned earlier,Barbara contends that the primary credit rate was 2.00% on the day the parties entered the contract. Yet, the record is void of proof of that contention.
Tabatha also asserts that Amendment 60 is unconstitutional, arguing that, under the 14th Amendment to the U.S. Constitution, Amendment 60 is void for vagueness and that it violates her substantive due process rights. However, the circuit court did not make a specific ruling on any of her constitutional arguments, likely because it ruled in her favor when it granted her motion for summary judgment. Absent a specific ruling on the constitutional claims, we are precluded from addressing them on appeal. See Smith v. Smith, 363 Ark. 456, 215 S.W.3d 626 (2005). | [
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Jim Gunter, Justice.
This appeal arises from an April 8, 2005, order from the Pulaski County Circuit Court setting aside a February 1, 2005 order which set aside a December 16, 2004 order granting summary judgment in favor of appellee, Safeco Insurance Company of Illinois. On appeal, appellant, Lee Murchison, argues that the trial court erred in setting aside the February 1 order because Ark. R. Civ. P. 60(a) allows the circuit court to set aside a judgment within ninety days. Appellee argues that Ark. R. App. P. — Civil 4 applies. We hold that the circuit court was without jurisdiction to hear appellant’s motion to set aside the summary-judgment order, and we dismiss the appeal.
Appellant initially filed a complaint against appellee based on his insurance contract for motor-vehicle coverage. In his complaint, he alleged that his insurance was in effect on the day that he was involved in an automobile accident. Appellee filed an answer, and on November 19, 2004, appellee filed a motion for summary judgment, pursuant to Ark. R. Civ. P. 56, on the grounds that appellant’s insurance was properly cancelled for failure to pay his premium. On December 16, 2004, the circuit court entered an order, granting summary judgment in favor of appellee. Approximately one hour after the circuit court’s order was filed on December 16, 2004, appellant filed a motion to extend the time for responding to appellee’s motion for summary judgment on the basis that appellant’s previous trial counsel, Alvin Clay, who now is the appellate attorney in the case, failed to respond timely to the motion.
On December 20, 2004, appellant filed a motion to set aside summary judgment, arguing that he could not determine the exact date of service of the summary-judgment motion and did not receive the motion on the date indicated on the certificate of service. Without specifically citing Rule 60, appellant asserted that he had a “good, valid and meritorious claim” and “to permit the summary judgment to be entered in this manner would be an injustice to the plaintiff.” On that same day, December 20, 2004, appellant also filed a response to appellee’s motion for summary judgment, requesting that the summary-judgment motion be denied and that the matter be set for trial. On January 24, 2005, appellee responded to appellant’s motion to set aside the summary-judgment order, stating that appellant failed to respond to the summary-judgment motion in a timely manner, and that appellant failed to provide “evidence of mistake, error, fraud, or legal error which would bring his situation within the confines of Rule 60.” A hearing on the matter was held on January 25, 2005. At the hearing, appellant’s counsel represented that he failed to respond timely to appellee’s motion for summary judgment based upon a “multitude of family problems” that constituted “pure inadvertence.” Appellant’s counsel requested that the circuit court “use Rule 56 sparingly.” After hearing the arguments and reviewing the pleadings, the circuit court entered a second order on February 1, 2005, setting aside its previous order granting summary judgment and granting appellant fifteen days to respond to appellee’s motion for summary judgment.
On February 22, 2005, appellee filed a motion to set aside the February 1, 2005 order. In its motion, appellee argued that the circuit court was without jurisdiction to rule on appellant’s motion to set aside the order under Ark. R. App. P.-Civ. 4(b)(1), because appellant’s motion was deemed denied thirty days after it was filed. Appellant responded on February 25, 2005, arguing that Rule 60 was applicable. A hearing on appellee’s motion to set aside was held on April 4, 2005, and on April 8, 2005, the circuit court entered a third order, granting appellee’s motion to set aside the February 1, 2005 order setting aside summary judgment and reinstating the December 16, 2004 order granting summary judgment. Appellant timely filed a notice of appeal on May 5, 2005, appealing the April 8, 2005 order. Appellee filed a notice of cross-appeal on May 17, 2005. On April 27, 2006, appellee filed a motion to dismiss, which was submitted with this case.
We now consider the sole issue presented in the parties’ briefs: whether the circuit court’s February 1, 2005, order was proper. Appellant argues that the trial court erred in its April 8 order by setting aside the February 1 order that set aside the December 16 order granting summary judgment. Specifically, appellant contends that, under Ark. R. Civ. P. 60(a), a trial court has the discretion to set aside a judgment within ninety days “to correct errors or mistakes or to prevent the miscarriage of justice.” Id. Appellant asserts that, under Rule 60(a), the circuit court had the authority to hear the motion to set aside.
Appellee responds, arguing that the circuit court did not have jurisdiction to enter the February 1 order based upon Ark. R. App. P.-Civil 4. Specifically, appellee contends appellant’s motion to set aside was deemed denied because the circuit court did not act on the motion within the thirty-day period under Rule 4(b)(1).
This issue requires an interpretation of our rules. We have said we adhere to a strict interpretation of our rules. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). Appellant relies upon Rule 60 of the Arkansas Rules of Civil Procedure, which provides in pertinent part:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
Id. A Rule 60 motion is designed to provide relief from ajudgment or decree erroneously entered by a court for one of the reasons set forth in the rule. Ark. R. Civ. P. 60; Barnett v. Howard, 363 Ark. 150, 211 S.W.3d 490 (2005).
Appellant maintains that the February 1 order modifying the December 16 order was entered within the ninety days prescribed by Rule 60. However, in our review, we must also consider the interplay of Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure-Civil in the context of Rule 60 motions. Rule 4(b)(1) provides in pertinent part:
(b) Extension of time for filing notice of appeal.
(1) Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Id. (emphasis added).
Rule 4(b)(1) was amended in 2001, and according to the Reporter’s Notes of the 2001 Amendment to Rule 4(b)(1), the rule was amended “to clarify which post-trial motions extend the time for filing the notice of appeal.” The notes state, “For example, a motion to set aside the judgment pursuant to Rule 60 extends the time for filing the notice of appeal, so long as it is made no later than 10 days after the judgment is entered. The 10-day period corresponds to the time frame for motions under Rules 50(b), 52(b), and 59(a).” Id.; see also First Nat’l Bank of Lewisville v. Mayberry, 366 Ark. 39, 233 S.W.3d 152 (2006) (stating that because the motion to vacate was not filed within the ten-day period, it did not fall within the deemed-denied provision of Rule 4(b)(1)).
In this case, appellant’s motion falls within the deemed-denied provision of Rule 4(b)(1). Here, the circuit court entered summary judgment in favor of appellee on December 16, 2004, and appellant’s motion to set aside was timely filed on December 20, 2004, within the ten-day period. See Ark. R. App. P.-Civil 4(b)(1). However, the circuit court made no ruling on appellant’s motion within thirty days, which is also required by Rule 4(b)(1), and the thirty-day period lapsed on January 19, 2005. Under Rule 4(b)(1), appellant’s motion was deemed denied on that day, and a notice of appeal should have been filed thirty days from the deemed-denied date ofjanuary 19, 2005. It was not until January 25, 2005, that the circuit court held a hearing on appel lant’s motion, and the circuit court subsequently entered a February 1, 2005 order setting aside the judgment. A notice of appeal was not filed in this case until May 5, 2005, after the April 8, 2005 order from which appellant now appeals.
We have held that the failure to act within the thirty-day period under Rule 4(b)(1) results in loss of jurisdiction in the circuit court to consider an appellant’s motion to set aside. See Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991) (holding that the trial court’s failure to enter an order disposing of Jacobs’s motion for new trial within thirty days divested the trial court of jurisdiction to act on the motion thereafter) (overruled on other grounds by Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999). Based upon this precedent, we hold that the circuit court was without jurisdiction to hold the hearing on January 25, 2005, regarding appellant’s motion to set aside, and to enter the order on February 1, 2005. The circuit court also lacked jurisdiction to enter the subsequent order filed on April 8, 2005, and the time for filing a notice of appeal from the December 16, 2004 order has long expired. The notice of appeal is therefore untimely. Accordingly, we lack jurisdiction to hear the appeal, and we dismiss the appeal. See Seay v. C.A.R. Transp. Brokerage Co., Inc., 366 Ark. 527, 237 S.W.3d 48 (2006). The December 16, 2004 order granting summary judgment in favor of appellee remains in effect.
We further note that the circuit court had continuing jurisdiction to vacate under Rule 60(a) for ninety days after the December 16, 2004 order was entered. The circuit court’s opportunity to grant Rule 60(a) relief expired on March 16, 2005, or ninety days after the December 16, 2004 order. Flere, appellant appeals from an order that was not entered until April 8, 2005, and the basis of this appeal was not timely to effect any Rule 60(a) relief. Therefore, we hold that the circuit court lost jurisdiction to grant Rule 60(a) relief ninety days after the December 16, 2004 order.
Because we hold that Rule 4(b)(1) is dispositive of the issue on appeal, we decline to address appellee’s cross-appeal. Further, appellee’s motion to dismiss is rendered moot.
Appeal dismissed.
FIannah, C.J., and Glaze, J., concur, noting that they would end the analysis with Rule 4(b)(1). | [
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Per Curiam.
Femando Padilla, a full-time, state-salaried public defender in Pulaski County, the Sixth Judicial District, was appointed to represent appellant, James White, an indigent defendant. Following a jury trial held on July 18, 2006, appellant was found guilty of rape, knowingly/willfully exposing another to HIV, and sexual abuse in the fourth degree, and he received a life sentence in the Arkansas Department of Correction. A notice of appeal was timely filed and the record has been timely lodged in this court. Mr. Padilla now asks to be relieved as counsel for appellant’s appeal based upon Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time state-salaried public defenders were ineligible for compensation for their work on appeal) and Ark. Code Ann. § 16-87-201 et seq. (1998).
In his motion, Mr. Padilla incorrectly relies on Rushing stating that full-time public defenders cannot be compensated for appellate work. Further, he incorrectly states that full-time public defenders are only compensated for trial work. Since the court’s decision in Rushing, the General Assembly passed legislation providing that only those full-time, state-salaried public defenders who do not have a state-funded secretary may seek compensation for their work on appeal. See Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005). Full-time public defenders who do not retain a state-funded secretary will be compensated for their work on appeal. Tice v. State, 365 Ark. 410, 230 S.W.3d 557 (2006).
Mr. Padilla states in his motion that he is provided with a full-time, state-funded secretary who maintains his office operations. Accordingly, we grant his motion to withdraw as attorney for appellant. Mr. Joseph C. Self has stated his willingness to accept appointment in this case and he will be substituted as counsel for appellant. The Clerk will establish a new briefing schedule.
Glaze, J., not participating. | [
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Jim Gunter, Justice.
Appellee, the State of Arkansas, petitions for review from a court of appeals’ decision to reverse and remand the Pope County Circuit Court’s order that extended appellant’s probation by ordering him to serve twelve months in the Regional Punishment Facility as an additional condition of probation, with credit to be given for time already served. See Scissom v. State, 94 Ark. App. 452, 232 S.W.3d 502 (2006). We granted the State’s petition for review pursuant to Ark. Sup. Ct. R. 2-4(e) and (f) (2006). We affirm the court of appeals’ decision for resentencing, and we reverse and remand to the circuit court for sentencing under the proper statutes.
In March of 2003, appellant was charged with one count of possession of a controlled substance with intent to deliver, a Class C felony and a violation under Ark. Code Ann. § 5-64-401 (2003). In its order issued September 29, 2003, the trial court placed appellant on probation for sixty months conditioned in part upon his serving 120 days in the countyjail, a fine of $850, $150 in court costs, and 168 hours of community service work. Also, the trial court ordered appellant to meet with a probation officer on a regular basis and to refrain from using any controlled substances. On January 5, 2005, the State filed a petition for revocation of probation alleging that appellant failed to report to his probation officer, was delinquent on probation fees and court payments, and used controlled substances during his probationary period.
In its order dated March 7, 2005, after finding that appellant had violated the conditions of his probation, the trial court decided not to revoke the probation as requested by the State. Instead, the court ordered appellant to serve twelve months in the Regional Punishment Facility as an additional condition of his probation. Appellant filed a timely notice of appeal. The court of appeals reversed and remanded the trial court’s order with an instruction that no additional period of confinement could be imposed. A petition for review was filed in this court on April 3, 2006, and was granted on June 29, 2006.
When we grant petitions for review of a decision by the court of appeals, we review the appeal as if it had been originally filed in this court. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004). At issue here is a question of law in the interpretation of a statute. This court reviews questions of law denovo. Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004).
For his sole point on appeal, appellant argues that the trial court erred when it ordered appellant to serve twelve months in a Regional Punishment Facility as an additional condition of his probation. Specifically, appellant contends that, under Ark. Code Ann. § 5-4-304(d) such a term imposed as a condition of probation could not exceed twelve months. The additional twelve months ordered by the judge would result in a sixteen month period imposed as a condition of appellant’s probation period, clearly exceeding the statutory requirement. The State argues that the court erred in its order because it did not use the statute that was in effect at the time appellant was charged.
Since the enactment of the criminal code, this court has held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006) (citing Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003)). Sentencing is entirely a matter of statute in Arkansas. Id. See Ark. Code Ann. § 5-4-104(a) (Repl. 2006). If the statute does not authorize the particular sentence ordered by the trial court, the case must be reversed and remanded. Id. See also State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006). This court has further held that the general rule concerning illegal sentences is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)(citing Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985)); see also Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).
In this case, the trial court apparently used the sentencing statute that became effective July 16, 2003, when determining appellant’s probation sentence. The statute provides in part:
(d) (1) (A) The period actually spent in confinement pursuant to this section in a county jail, city jail, or other authorized local detentional, correctional, or rehabilitative facility shall not exceed:
(i) One hundred twenty (120) days in the case of a felony; or
(ii) Thirty (30) days in the case of a misdemeanor.
(B) In the case of confinement to a facility in the Department of Community Correction, the period actually spent in confinement under this section shall not exceed three hundred sixty-five (365) days.
(2) For purposes of this subsection, any part of a twenty-four-hour period spent in confinement shall constitute a day of confinement.
Ark. Code Ann. § 5-4-304(d) (Supp. 2003) (emphasis added). The italicized language was added by Act 1742 and was effective July 16, 2003, after appellant committed the crime.
Appellant committed a Class C felony on February 27, 2003. The version of Ark. Code Ann. § 5-4-304(d) that was effective on that date did not include the provision for 365 days; rather, it limited the time that could be served as a condition of probation to 120 days in confinement. As stated in Sullivan, supra, we have held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Therefore, we hold that the trial court erred in amending appellant’s probation to include a year in a Regional Punishment Facility when the statute in effect at the time of the offense limits the period to 120 days. Appellant’s sentence is illegal. Pursuant to the limitations set forth above, we reverse and remand this case back to the trial court for proper disposition as set forth in Ark. Code Ann. §§ 5-4-304, 306 and 309 (2003).
We reverse and remand for sentencing under the proper statute.
Court of appeals affirmed in part, reversed in part; circuit court reversed and remanded. | [
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Per Curiam.
A judgment and commitment order entered May 7, 2000, reflects that appellant Ricky Lee Brown entered a guilty plea to first-degree murder and was sentenced to 720 months’ imprisonment in the Arkansas Department of Correction. On August 30, 2005, appellant filed in the trial court a pro se petition requesting scientific testing under Act 1780 of the 2001 Acts of Arkansas, codified as Ark. Code Ann. §§ 16-112-201 - 16-112-207 (Repl. 2006). The petition was denied by order entered September 6, 2005. On September 13, 2005, appellant filed a motion for reconsideration of that order, which was denied by order entered September 14, 2005. Appellant now brings this appeal of the order denying his motion for reconsideration.
Appellant’s arguments in his brief are so poorly written that they are difficult to follow, and, in fact, are largely incoherent at times. He appears to attempt only to argue that the September 6, 2005, order denying his motion for testing was in error, rather than asserting any error regarding the September 14, 2005, order denying reconsideration. In any case, it is clear that the trial court did not err either in denying appellant’s motion for reconsideration or in denying the petition for relief under Act 1780, because appellant’s petition failed to meet the jurisdictional requirements of the act. Appellant filed his petition more than five years after the judgment and commitment order was entered, yet he failed to make any showing to rebut the presumption that his petition was not timely filed under section 16-112-202(10)(B).
Section 16-112-202(10)(B) establishes a rebuttable presumption that a petition is untimely unless it is filed within thirty-six months of the conviction. In order to overcome the presumption, a petitioner must establish, in the petition, one of the grounds listed in section 16-112-202(10)(B). Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006). Under the Act, a petitioner may establish that his petition is timely through a showing that incompetence substantially contributed to the delay, that the evidence to be tested is newly discovered, or that a new method of technology that is substantially more probative than prior testing is available. A petitioner can rebut the presumption through other good cause, but may not do so solely through an assertion of his innocence and that denial would result in manifest injustice. See id.
Appellant requested testing only on evidence that was available at the time of his trial. He does not assert that any new method of testing is available. Although petitioner later attempted to raise issues related to his competence to enter the plea, the petition does not allege incompetence contributed to the delay. In fact, appellant did not address or acknowledge the delay in his petition, at all, and stated no cause or explanation for the delay, whatsoever.
The trial court cannot consider a petition for relief under Act 1780, as revised, if that petition is filed outside of the thirty-six month period and fails to state one of the enumerated grounds to establish timeliness. Because the trial court did not have jurisdiction to consider the merits of the petition, it did not err in denying the petition or appellant’s motion for reconsideration.
Affirmed.
Act 1780 of the 2001 Acts ofArkansas was amended by Act 2250 of2005. As revised, the act provides in section 16-112-202(10) that a motion for relief may be made only if timely. | [
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Tom Glaze, Justice.
We are asked in this appeal to address an issue of first impression: in a theft-by-receiving case, should the sales tax paid on an item be included when determining the value of the item stolen? Appellant Billy Joe Russell was charged with theft by receiving; the charges stemmed from the theft of a Sears generator that had been purchased by Morris Gilmore. Gilmore testified that he bought the generator on January 18, 2004, and that it cost $499.99, plus $49.99 for an extended warranty and $39.19 in sales tax, for a total of $589.17. The- State introduced into evidence Gilmore’s sales receipt, which reflected these amounts.
At the conclusion of the State’s case, Russell moved for a directed verdict, arguing that the State had not proven that the value of the stolen property was in excess of $500. The trial court denied Russell’s motion, giving its reasons in the following colloquy:
Defense: [W]hat was actually paid for [the] goods was $589 and some change as the gentleman had testified. That’s the cost of that generator. The value of that generator is $499.99.
Court: Well, okay. If he had taken it back to Sears, he would have gotten $589.17 back, so I’m denying your motion on that.
Defense: I don’t know ...
State: Your Honor ...
Defense: Judge, I just don’t know if that is true. Number one, he’d had that generator for over six months.
Court: That’s what he testified to.
Defense: If there’s no one from Sears to testify that they would have accepted it —
Court: Well, I’m going with what he testified to on that because I’m certain that that’s the way it would be.
(Emphasis added.) The trial court denied Russell’s renewed directed-verdict motion at the conclusion of the trial and convicted Russell of theft by receiving, sentencing him to ten years in prison.
On appeal, Russell challenges the sufficiency of the evidence supporting the verdict. A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are challenges to the sufficiency of the evidence. See Ark. R. Crim. P. 33.1 (2004); Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. The question of what constitutes the “value” of stolen property, however, is a question of law, which this court reviews de novo. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
As noted above, Russell was convicted of theft by receiving, a Class C felony. A person commits the offense of theft by receiving if he or she “receives, retains, or disposes of stolen property of another person: (1) [kjnowing that the property was stolen; or (2) [hjaving good reason to believe the property was stolen.” Ark. Code Ann. § 5-36-106(a) (Repl. 2006). The offense is a Class C felony if “[t]he value of the property is less than two thousand five hundred dollars ($2,500) but more than five hundred dollars ($500)[,]” Ark. Code Ann. § 5-36-106(e)(2)(A) (Repl. 2006), and a “Class A misdemeanor if otherwise committed.” Ark. Code Ann. § 5-36-106(e)(3) (Repl. 2006).
“Value” is defined, in pertinent part, as “[t]he market value of a property ... at the time and place of the offense, or if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense^]” Ark. Code Ann. § 5-36-101 (12)(A)(i) (Repl. 2006). Our court has held that the State has the burden of proving the value of the property stolen, and the preferred method of establishing value is by expert testimony. Reed v. State, 353 Ark. 22, 26-27, 109 S.W.3d 665, 668 (2003); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). However, value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Reed, supra (citing Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990)). This court has also held that the original cost of property may be one factor considered by the fact-fmder in determining market value, as long as it is not too remote in time and relevance. Reed, supra; Jones v. State, 276 Ark. 116, 632 S.W.2d 414 (1982).
Russell argues that the State failed to prove that the value of the stolen generator was in excess of $500. He points out that Gilmore purchased the generator for $499.99, but additionally paid sales taxes of $39.19 and bought an extended warranty for $49.99, making the total of the purchase $589.17.
In his opening brief, Russell raises three basic premises. First, he asserts that, because Gilmore paid Sears only $499.99 for the generator, that amount was the value of the item when it was stolen; it was only after taxes and the purchase of the warranty were added that the monetary figure exceeded $500. Second, he urges that the State failed to prove that the generator was valued in excess of $500 at the time of the offense because there was testimony that the generator showed signs of wear at the time it was stolen and re-sold to another individual named Dennis Chudy. Third, he notes that the trial court ruled that if Gilmore had taken the generator back, he would have received the full amount paid, but the State did not introduce evidence regarding Sears’s return policy.
The State does not address this third point in its brief. However, this court has held that it is not proper to leave a fact finder to the individual ideas of that fact finder to determine value. See Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Kansas City Southern Ry. Co. v. Biggs, 181 Ark. 818, 28 S.W.2d 68 (1930). The Cannon court further held that, while a fact-fmder may apply its own common knowledge and experience in concluding that the requisite value has been shown, such experience and common knowledge “are only to be applied to [the] evidence adduced.” Cannon, 265 Ark. at 273, 578 S.W.2d at 22 (citing Missouri Pacific R.R. Co. v. Benham, 192 Ark. 35, 89 S.W.2d 928 (1936)). Here, the State adduced no evidence pertaining to Sears’s return policies; therefore, the trial court erred in concluding, based on its “certain[ty] that that’s the way it would be,” that Sears would have refunded the full $589.17 to Gilmore.
We next address an argument that the State does discuss — namely, that the inclusion of the amount paid for the sales tax and the warranty increased the “value” of the generator over the $500 threshold for a Class C felony. We begin our analysis by pointing out that, if the sales tax and warranty amounts are excluded, the State clearly failed to meet its burden of proving that the stolen property was valued in excess of the felony threshold of $500, because the generator itself cost only $499.99.
There is no Arkansas case law directly on point, but the jurisdictions that have considered the issue have generally concluded that a sales tax is not truly a component of the value of a good or service. See, e.g., State v. Kluge, 672 N.W.2d 506, 509 (Iowa Ct. App. 2003). Rather, the tax is a “separate amount collected by a retailer for the benefit of a governmental taxing authority. It is a fee collected because of a transaction.” Id. At least two lower courts in New York have likewise concluded that the value of stolen goods is the market value of those goods as reflected by the purchase price, exclusive of any levied sales taxes. See People v. Medjdoubi, 173 Misc. 2d 259, 661 N.Y.S.2d 502 (1997); People v. Barbuto, 106 Misc. 2d 542, 434 N.Y.S.2d 120 (1980); but see People v. Bazo, 139 Misc. 2d 1003, 529 N.Y.S.2d 432 (1988) (concluding that the market value of a stolen item was to be determined by the “consumer-seller” market, in which a reasonable buyer would consider the sales tax in determining what he or she would pay for the item).
In People v. Medjdoubi, supra, the court reasoned that the purpose of the theft statutes “fixing the higher degrees of crimes is not related to regulating the economic market but to assessing the scale of criminal operations by the defendant.” Medjdoubi, 173 Misc. 2d at 263, 661 N.Y.S.2d at 506. The court continued as follows:
The Legislature’s more serious treatment is predicated upon the worth of the stolen property as reflected by the amount of its dollar value. Imposing greater criminal liability dependent solely on whether or not sales tax is paid, has no rational relationship to an assessment of the gravity of the larcenous act. Rather, even where the consumer pays the tax, the thief would be arbitrarily penalized because of an inappropriate focus on the added cost to the victim. Such a focus on the economic loss to the victim is a proper consideration when the court is determining what statutorily authorized sentence or amount of restitution it will impose [citations omitted]. The Penal Law does not provide such a process for classifying the level of crime and its attendant criminal penalties. A defendant, found guilty of higher felony level charges due to the addition of sales tax, would be subjected to greater punishment in no way related to a higher level of criminal conduct.
Sales tax does not enhance the value of property. Rather, it is itself calculated based upon the dollar value of the property. It therefore should not be used to elevate the seriousness of the charge by changing its classification and the punishment that can be imposed. This court, therefore, holds that the value of stolen property which is retail merchandise is its market value as reflected by the purchase price exclusive of any levied sales tax.
Id. at 263-64, 661 N.Y.S.2d at 506 (emphasis added).
Similarly, in People v. Barbuto, supra, the New York court noted that the New York tax statutes clearly provided that a vendor was to collect taxes from each customer and hold those taxes as a trustee for and on account of the State, and that the actual selling price of the goods and the sales tax to be collected thereon were separate and distinct items. Barbuto, 106 Misc. 2d at 544, 434 N.Y.S.2d at 121. Therefore, “[t]he rational conclusion is that, while a sales tax may increase the cost of an object, it does not increase the value thereof.” Id. (emphasis added).
In the Kluge case cited above, appellant Kiluge was convicted of second-degree theft after he failed to return a tile saw to the store from which he had rented it. In Iowa, second-degree theft requires a finding that the value of the stolen property was over $1000 but not more than $10,000. Kluge, 672 N.W.2d at 508 (citing Iowa Code § 714.2(2) (2001)). The State presented evidence that, had Kluge purchased the saw, it would have cost $995, plus sales tax, for a total of $1064.65. Id.
On appeal, Kluge argued that the trial court had improperly included the sales tax in determining the value of the saw. The Court of Appeals of Iowa reasoned that, because the theft statute was silent as to the inclusion of sales tax in the computation of the value of stolen property, it was necessary to determine the legislature’s intent. Id.
In ascertaining legislative intent, we believe the nature of a tax, in general, and a sales tax specifically, is important to examine. A tax may be considered “a pecuniary burden laid upon individuals or property to support the government.” Black’s Law Dictionary 1628 (Revised 4th ed. 1968). Webster’s defines “sales tax” as “a tax levied on the sale of goods and services that is usually calculated as a percentage of the purchase price and collected by the seller.” Webster’s Ninth New Collegiate Dictionary, 1038 (1986). ... Iowa Code section 422.43(1) imposes a “tax of five percent upon the gross receipts from all sales of tangible personal property ... sold at retail in the state to consumers or users[.]” Iowa Code § 422.43(1).
Id. at 509. Accordingly, the Iowa court concluded that a sales tax did not increase the value of property, and therefore, that state’s statutory scheme did not allow for sales taxes to be used to elevate the degree of a theft charge where the issue was the theft of a tangible good from a retailer. Id.
The Louisiana Supreme Court has considered whether an insurance company could recover a sales tax payment in a subrogation claim on behalf of its insured against a tortfeasor who caused the total loss of the tort victim’s vehicle. See State Farm Mut. Auto. Ins. Co. v. Berthelot, 732 So. 2d 1230, 1231 (La. 1999). The insurance policy in that case provided that the limits of State Farm’s liability for loss to property was the lower of the actual cash value, or the cost of repair or replacement. Following the total loss to its insured’s vehicle, State Farm calculated its payment to the insured to include a reimbursement for sales tax. The tortfeasor, Berthelot, and his insurance company paid the cash value for the totaled car, but refused to pay the sales tax. State Farm filed suit, and the trial court ordered Berthelot to pay the sales tax. Id. at 1232.
On appeal, the Louisiana Court of Appeals affirmed, but the Supreme Court reversed, pointing out that “a sales tax is a distinct and separate charge [that] the retail seller is required to collect as a pass-through entity for the benefit of the state and locality.” Id. at 1234-35. Moreover, the court noted that Louisiana’s sales and use tax was “an excise tax, a tax upon the transaction itself, not the property involved in the transaction.” Id. at 1235. Therefore, the court concluded as follows:
[W]hile it may be said that sales tax may increase the cost to the buyer in the retail market, it is equally clear that it does not increase the value of the property purchased. Simply stated,... a sales tax is a mandatory cost [that] state and local governments have added to the sale transaction, over and above the value of the purchased property.
Id. (emphasis added).
In Arkansas, as in Iowa and Louisiana, the sales tax is an excise tax “upon the gross proceeds or gross receipts derived from all sales to any person” of goods and services enumerated in the statute, including “[t]angible personal property[.]” Ark. Code Ann. § 26-52-301(1) (Repl. 1997 & Supp. 2005). A sales tax is a tax “imposed on the sale of goods and services” that is usually “measured as a percentage of their price.” Black’s Law Dictionary 1498 (8th ed. 2004). Clearly, the sales tax is a cost imposed on the transaction. It does not in any way increase or enhance the “value” of the property. Therefore, we hold that sales taxes are not properly considered a component of the value of an item of stolen property, and we conclude that the trial court erred in including the sales taxes in computing the generator’s value.
Finally, we must address the State’s argument that the inclusion of the $49.99 warranty in the purchase price caused the “value” of the generator to be in excess of $500. The State claims that because Gilmore bought the warranty when he bought the generator, Russell “not only stole a generator, but he stole a generator that was under warranty.” In support of this contention, the State cites Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994), for the proposition that “[i]t is the owner’s present interest in the property that the law seeks to protect.” Hardrick, 47 Ark. App. at 111, 885 S.W.2d at 913. However, neither Hardrick nor any other reported Arkansas case holds that the price of an optional extended warranty should be included in the calculation of the value of stolen property.
In Chappelle v. United States, 736 A.2d 212 (D.C. 1999), the District of Columbia Court of Appeals held that the cost of a warranty should not be included, because “the obligations encompassed in the agreement were not exclusive to the stolen telephone and thus arguably an integral part of its ‘value.’ ” Chappelle, 736 A.2d at 216. Rather, the court held, because the warranty contract would “carry over” to the next phone that the owner purchased, “the cost of these transferable ancillary services cannot be considered in determining the value of the property taken.” Id.
In the instant case, the State introduced no evidence that Russell received a warranty on the stolen generator, or even that Gilmore’s warranty was stolen. Citing Chappelle, supra, Russell notes that the State “failed to prove at trial that the warranty Mr. Gilmore purchased was exclusive to the generator at issue and would not cover any replacement generator he might have purchased.” We agree, and hold that the cost of the warranty was improperly included in the computation of the generator’s value.
In sum, because the sales tax should not have been included in computing the value of the generator, and the State failed to prove that the warranty was stolen along with the generator, Russell’s Class C felony theft conviction cannot stand. However, Russell does not challenge the sufficiency of the evidence showing that he was generally guilty of theft by receiving. As the value of the generator was, at most, $499.99, Russell still stands convicted of a Class A misdemeanor. See § 5-36-106(e)(3); see also Cannon v. State, 265 Ark. at 274, 578 S.W.2d at 22 (where there was no contention that the evidence did not warrant a finding that appellant was guilty of theft by receiving, any error in the denial of appellant’s motion to dismiss could be corrected by modifying the judgment to reduce it to an appropriate sentence for a misdemeanor). Accordingly, Russell’s conviction is affirmed as modified, and his sentence is likewise modified to reflect the maximum sentence for a Class A misdemeanor of one year; see Ark. Code Ann. § 5-4-401 (b)(1) (Repl. 2006), with credit for any time Russell has already served. See Cannon, supra; see also Reed v. State, 353 Ark. at 28, 109 S.W.3d at 669.
Affirmed as modified.
Corbin, Dickey and Gunter, JJ., dissent.
Our conclusion is strengthened by reference to the general rule that, in interpreting a penal statute, “[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003). The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Id. However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In the present case, construing the theft-by-receiving statute to exclude the amount of any sales taxes paid would not defeat the intent of the legislature. The General Assembly clearly defined the “value” of stolen property to mean the “market value of a property ... at the time and place of the offense!’ Ark.CodeAnn.§ 5-36-101(12)(A)(i) (Repl.2006). Given this definition, it is logical and reasonable to exclude any sales tax paid from a computation of the “value” of property, especially when, as here, the property is stolen from one who purchased the property some time in the past. The sales tax is a fee on the sales transaction, collected at the time the transaction occurred. Here, the theft occurred six months or so after the sales transaction. Clearly, the sales tax was in no way involved in the later theft, nor was the “value” of the generator at the time of the theft affected or enhanced by the collection of the sales tax six months earlier. | [
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Donald L. Corbin, Justice.
Appellants BKD, LLP, William E. Fingland, Jr., and Steven D. Warren (BKD) appeal the order of the Pulaski County Circuit Court denying their motion for attorneys’ fees. On appeal, BKD raises one issue for reversal: the circuit court erred in finding that it was not the prevailing party and thus erred in denying its motion for attorneys’ fees under Ark. Code Ann. § 16-22-308 (Repl. 1999). We assumed this case from the court of appeals as it involves an issue of first impression and requires clarification of the law; hence, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1) and (5). We find no error and affirm.
BKD is a public accounting firm headquartered in Springfield, Greene County, Missouri. Appellee Barbara Yates was a partner in BKD’s Little Rock office. The parties’ relationship was governed by a partnership agreement signed by both parties. The agreement included provisions for nonjudicial and confidential dispute resolution under Missouri law, and further provided that any lawsuit permitted under the agreement “shall be brought only in the Circuit Court of Greene County, Missouri, and the parties hereto hereby irrevocably consent to personal jurisdiction in Greene County, Missouri, and acknowledge convenience and propriety of the venue.”
In June 2003, Yates was diagnosed with Rocky Mountain Spotted Fever. Following this diagnosis, BKD first determined that Yates’s medical condition was a partial disability. Later, on September 1, 2004, after placing Yates on uncompensated leave since July 1, 2004, BKD terminated Yates’s partnership interest. On March 1, 2005, Yates filed a complaint against BKD in Pulaski County Circuit Court raising seven causes of action and seeking: (1) a declaration that the noncompete and confidentiality provisions were unenforceable; (2) injunctive relief; (3) a declaratory judgment that BKD materially breached sections of the partnership agreement; (4) a declaration that the dispute-resolution provisions of the partnership agreement were invalid and unenforceable; (5) a declaration that BKD materially breached the contract; (6) an accounting; (7) a declaration that BKD breached its fiduciary duty. On April 8, 2005, Yates filed an amended and substituted complaint for declaratory and injunctive relief, damages, and for an accounting.
On March 11, 2005, BKD answered by filing a motion to dismiss the action, or in the alternative to stay the case pending resolution of a pending Missouri arbitration proceeding, on the basis of the forum-selection clause in the partnership agreement. On June 9, 2005, the circuit court dismissed the matter with prejudice as to the forum-selection clause only, but without prejudice to refile on the remaining issues in Greene County, Missouri, as might be appropriate. The June 9 order was not appealed.
Following the dismissal, BKD filed a motion for attorneys’ fees and costs, pursuant to section 16-22-308, based upon the court’s dismissal with prejudice enforcing the forum-selection clause and precluding further litigation in Arkansas. The circuit court denied the motion for attorneys’ fees on the basis that BKD had not prevailed on the merits of the case. This appeal followed.
BKD’s sole argument on appeal is that the circuit court erred in denying its application for attorneys’ fees. BKD argues that, because it obtained a dismissal with prejudice that enforced the forum-selection clause, it was a prevailing party eligible to receive attorneys’ fees under section 16-22-308. Moreover, BKD claims that it should have received attorneys’ fees because Yates attempted to frustrate the contractual expectations of the parties, burdened the Arkansas courts with frivolous and costly litigation, and caused BKD to incur substantial attorneys’ fees in resisting her action. Thus, we must consider whether the circuit court erred in deciding that BKD had not prevailed on the merits of the case, and if error occurred, whether attorneys’ fees should have been awarded under section 16-22-308.
A circuit court is not required to award attorneys’ fees and, in reviewing a court’s decision whether or not to award attorneys’ fees, we will not reverse unless there has been an abuse of discretion. Burnette v. Perkins & Associates, 343 Ark. 237, 33 S.W.3d 145 (2000). The decision on whether to award attorneys’ fees in contract cases is governed by section 16-22-308, which provides:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs. [Emphasis added.]
To be the prevailing party, the litigant must be granted some relief on the merits of its claim. See Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001); Burnette, 343 Ark. 237, 33 S.W.3d 145. Under Arkansas law, the prevailing party is determined by analyzing each cause of action and its subsequent outcome. Marcum, 344 Ark. 153, 40 S.W.3d 230. In essence, we must look at the case as a whole to determine whether there was a prevailing party and who is that party.
In Burnette, 343 Ark. 237, 33 S.W.3d 145, the appellants sought attorney’s fees after their motion to dismiss was granted without prejudice. There, the appellants were denied attorney’s fees on the basis that the dismissal without prejudice was not sufficient to give them prevailing-party status. On appeal, we upheld the denial of attorney’s fees, stating:
[0]ne must prevail on the merits in order to be considered a prevailing party under Ark. Code Ann. § 16-22-308. A dismissal without prejudice does not sufficiently conclude the matter such that a determination of the prevailing party can be stated with certainty. The potential for further litigation on the same issues with possible contrary outcomes precludes the identification of a prevailing party for purposes of the statute.
Id. at 242, 33 S.W.3d at 149-50 (footnote omitted).
BKD attempts to distinguish Burnette upon the grounds that, here, the dismissal was with prejudice, thus eliminating the potential for future litigation on the issue of the forum-selection clause. Moreover, BKD argues that, in Burnette, this court recognized that a dismissal with prejudice “enables the defendant to say he has ‘prevailed.’ ” Id. at 243 n.3, 33 S.W.3d at 150 n.3.
It is clear to us that BKD’s reading of Burnette is wrong. We did not hold, nor have we ever held, that a dismissal with prejudice enables the defendant to say that he is the prevailing party for the purposes of section 16-22-308. Rather, in footnote 3 of Burnette, we stated:
Other federal courts addressing the issue of prevailing party where the merits have not been reached have also denied attorney’s fees. See, Keene Corp. v. Cass, 908 F.2d 293 (8th Cir. 1990). There, the Eighth Circuit Court of Appeals found that where a complaint has been dismissed for lack of subject matter jurisdiction, fees under 42 U.S.C. § 1988 were not recoverable because the defendant had not prevailed over the plaintiff on any issue central to the merits of the litigation. More on point is Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1987), wherein the Seventh Circuit Court of Appeals found a dismissal without prejudice under Rule 41 (a) is unlike a dismissal with prejudice under Rule 41(b), which enables the defendant to say he has ‘prevailed.’ The court noted that under a dismissal without prejudice, the defendant remains at risk because the plaintiff may refile the action.
Id. Thus, the key to being the prevailing party is that there has been an adjudication on the merits of issues central to the litigation.
Here, the circuit court’s ruling stated:
2. For the reasons stated by the Court in [the] May 3, 2005 hearing ... this matter is dismissed with prejudice as to the forum selection clause only, but without prejudice to refile on the remaining issues, in Greene County, Missouri, as might be appropriate.
It is clear that the circuit court upheld and enforced the forum-selection clause. Nevertheless, in order to be a prevailing party under section 16-22-308 there must be resolution of the underlying merits of the claims at issue. In this case, this requirement was not met as there was no resolution of the majority of the claims at issue. Specifically, Y ates sought certain declaratory and injunctive relief, and she asserted claims for breach of contract and breach of fiduciary duty. The only issue resolved by the circuit court was its enforcement of the forum-selection clause that effectively rejected Yates’s claim that the dispute resolutions in the partnership agreement, which included the forum-selection clause, were unenforceable. Nevertheless, this one “win” does not automatically give BKD the status of a “prevailing party.”
In Gill v. Transcriptions, Inc., 319 Ark. 485, 489-90, 892 S.W.2d 258, 261 (1995), we stated:
The Arkansas Court ofAppeals has addressed the issue of who is the prevailing party in litigation under § 16-22-308. See ERC Mortg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990). In Luper, the Court of Appeals held that the plaintiff was the prevailing party under the statute, although six of the seven counts in his complaint were dismissed at the close of his case-in-chief. The court quoted with approval from a Missouri case:
[t]here can be but one prevailing party in an action at law for the recovery of a money judgment. It transpires frequently that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score but the one with the most points at the end of the contest is the winner, and ... is entitled to recover his costs.
32 Ark. App. at 19, 795 S.W.2d at 364, 365, quoting Ozias v. Haley, 125 S.W. 556, 557 (Mo. App. 1910).
In the present case, BKD may have “scored” on one issue; however, litigation is far from over and other opportunities to score remain. Specifically, there are many issues yet to be resolved. As such, the circuit court did not err in finding that BKD was not a prevailing party.
Because the circuit court correctly concluded that BKD was not a prevailing party, it is unnecessary to address BKD’s argument that it should have been afforded attorneys’ fees under section 16-22-308.
Affirmed.
Pursuant to Ark. R. Civ. P. 41(a)(2), a voluntary dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed an action based upon or including the same claim. Furthermore, an involuntary dismissal under Ark. R. Civ. P. 41 (b) operates as an adjudication on the merits when the action has been previously dismissed, whether voluntarily or involuntarily. | [
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Per Curiam.
In accordance with § 2(D)(3) of Amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, Judges Morris S. Arnold, C. Arlen Beam, and William Jay Riley of the United States Court of Appeals for the Eighth Circuit filed a motion and certification order with the clerk of the Arkansas Supreme Court on August 25,2006. The certifying court requests this court to answer a constitutional question of Arkansas law which may be determinative of issues now pending in the certifying court. The question involves the amount of protection afforded to pretrial detainees under our conscious indifference standard announced in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), compared to the protections afforded to pretrial detainees under the federal deliberate indifference standard. After a review of the certifying court’s analysis and explanation of the need for this court to answer the requested question of law, we accept certification of the following question: Does the conscious indifference standard announced in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), afford greater protection to pretrial detainees than the federal deliberate indifference standard?
This per curiam order constitutes notice of our acceptance of the certification of question of law. For purposes of the pending proceeding in the Supreme Court, the following requirements are imposed:
A. Time limits under Rule 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Jerala Grayson, is designated the moving party and will be denoted as the “Petitioner,” and her brief is due thirty days from the date of this per curiam; the defendants, Bob Ross, et al, shall be denoted as the “Respondents,” and their brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondents’ brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Rule 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Rule 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondents. | [
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Per Curiam.
Appellant Jimmy Bumgardner, by and through his attorney, Craig Lambert, has filed a motion for belated appeal.
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.” McDonald v. State, 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. (footnote omitted). This court no longer requires an affidavit admitting fault before we will consider the motion. However, it is plain from Appellant’s motion that there was error on Mr. Lambert’s part. Under Ark. R. App. P. - Crim. 16(a), Mr. Lambert was obligated to represent Appellant “throughout any appeal to the Arkansas Supreme Court or Arkansas Court of Appeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause.” Mr. Lambert filed a motion to withdraw as counsel before the circuit court, alleging that “sufficient cause” existed because Appellant had not paid him, but that motion was denied. Thus, Mr. Lambert was obligated to timely perfect Appellant’s appeal, and he did not do so.
Notably, the record clearly indicates that Appellant wanted to appeal. In fact, Appellant timely filed a pro se notice of appeal but mistakenly referenced a “final order . . . entered on March 16, 2005,” instead of the actual judgment entered on March 21, 2005. Thus, his appeal to date has not been timely perfected. Accordingly, we grant Appellant’s motion to file a belated appeal. A copy of this opinion will be forwarded to the Professional Conduct Committee.
Motion granted.
We note that a client’s failure to pay attorney’s fees is not sufficient cause to withdraw as counsel. | [
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Betty C. Dickey, Justice.
Appellant Kevin Tate was convicted by a jury of the first-degree murder of Melissa Portwood and sentenced to forty years’ imprisonment. He asserts four points on appeal, arguing that the trial court erred: (1) by admitting the testimony of Brande Schaffer that Tate fired a gun near her two days before the shooting death of Portwood; (2) by allowing the State to improperly place Tate’s character in issue; (3) by denying Tate’s motion for a mistrial because of the prosecutor’s remarks during closing arguments; and, (4) by admitting a series of photographs during the penalty phase of the trial depicting episodes in Portwood’s fife. We find no error, and thus we affirm the decision of the trial court.
Onjanuary 31, 2004, Hot Springs Police responded to a 911 call at the address in Hot Springs where Tate lived with his girlfriend Portwood, and Portwood’s friend, Brande Schaffer. Tate made the 911 call and he was on the scene when the police arrived. Portwood was inside the apartment, suffering from a gunshot wound to the head. Portwood died the same night, shortly after her arrival at the hospital in Hot Springs. Tate was arrested at the scene and transported to the jail in Hot Springs. Tate originally informed the police that he had been cleaning a gun which accidentally discharged, wounding Portwood. He later stated that he accidentally shot Portwood while they were in the midst of an argument. The murder weapon was found lying on the bed beside Portwood. A note from Portwood to Tate dated January 28 was also found, informing Tate that Portwood was terminating their relationship.
On August 18, 2005, the State filed a motion to admit evidence pursuant to Ark. R. Evid. 404(b), seeking to admit, among other things, evidence that Tate had fired a gun in Portwood’s apartment in September 2003, in an attempt to frighten Schaffer. In an opinion letter dated September 27, 2005, the trial judge failed to rule on that shooting incident. On October 13, 2005, the State filed an amended motion to admit 404(b) evidence, which stated that the shooting incident actually occurred on January 29, 2004, two days before the murder, and not in September 2003, as the previous motion had stated. At a pretrial hearing held in chambers on October 17, 2005, the trial court ruled that the incident was admissible pursuant to Rule 404(b) due to the change in date and its resulting increased proximity to the crime.
At trial on October 17, an acquaintance ofPortwood’s, Staci Musler, testified that to her knowledge, Tate was not employed. The Appellant objected and moved for a mistrial, contending that the State had thereby introduced impermissible evidence of Tate’s character. The trial judge denied the motion for a mistrial. During his closing argument, Tate noted that the State did not play the 911 call made by Tate after the shooting. In its second closing argument, during the penalty phase, the State remarked that the Appellant had also chosen not to play the tape. Tate then objected to that statement and moved for a mistrial on the basis that the State’s comments had shifted the burden of proof to the Appellant. The trial judge again denied a motion for a mistrial.
Staci Musler also testified that on the night before the murder, she had a conversation with Tate, and told him that Portwood would leave him if he persisted in his dalliances with other women. Tate responded, “No she won’t. I’ll kill her.” The jury returned a verdict finding Tate guilty of first-degree murder on October 17, 2005.
During the penalty phase of the trial held on October 18, 2005, a series of twelve photographs depicting scenes from Port-wood’s life were admitted into evidence. The trial court had earlier denied Tate’s motion in limine to exclude the photographs. Tate then filed a timely notice of appeal.
The Appellant’s first point on appeal is: The trial court erred by allowing into evidence the testimony of a witness that the appellant had fired a handgun into a couch.
Brande Schaffer, who lived in the house with the victim and defendant, testified that approximately two days prior to the killing in the instant case, the Appellant approached her when she was sitting on a couch inside Portwood’s apartment. He was holding the pistol that was later identified as the murder weapon. She further testified that the Appellant asked her if she was afraid of him, and that upon receiving a negative response, the Appellant discharged the weapon into the couch near her foot. This testimony was admitted by the trial court pursuant to Ark. R. Evid. 404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). The list of exceptions set out in the rule is exemplary and not exhaustive. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996).
The Appellant argues that the bad act in question here, the discharge of the pistol, is not admissible because it is not substantially similar to the crime charged, and cites Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003), and Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995), in support of that argument. In Barrett, we held that the defendant’s physical assault on the same victim approximately one and one-half years prior to the murder in that case was admissible under 404(b) when the body exhibited injuries similar to those produced by the prior assault. In Russey, the evidence admitted pursuant to 404(b) was a police officer’s testimony that approximately three months before the defendant’s murder of his wife, while the officer was responding to a domestic disturbance call, he observed the shotgun with which the wife was killed lying loaded on a bed in the defendant’s home. Russey, 322 Ark. at 788, 912 S.W.2d at 421.The defendant maintained that he had accidentally fired the gunshot which killed his wife, and we held that the officer’s observance of the murder weapon during the domestic disturbance call was admissible under Rule 404(b) to show absence of mistake or accident. Id.
Russey is instructive in the present case. Here, the evidence to which Tate objects is testimony that he intentionally fired the murder weapon inside the house where the killing occurred, approximately two days prior to the alleged murder, in an apparent attempt to intimidate the victim’s roommate. This evidence has more independent relevance than the evidence admitted in Russey, which was the mere observance of the murder weapon during a domestic disturbance three months prior, and did not involve the handling or discharge of the weapon.
Tate maintained that he accidentally fired the shot that killed Portwood. In Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006), the defendant was convicted of manufacturing methamphetamine. At trial, he claimed that he had no knowledge of how a methamphetamine lab happened to be in his van. Id. There, we held that the defendant’s prior arrests for the manufacture of methamphetamine, and for shoplifting methamphetamine precursors, were relevant to show motive, intent, and absence of mistake or accident as to his manufacture of the drug. Id.
The present case is similar. We find that the evidence of Tate’s intentional discharge of the murder weapon in the manner and circumstance described above was relevant to show lack of mistake or accident. Moreover, considered in conjunction with the testimony that Tate uttered a contingent threat against Portwood’s life on the night before her murder, the shot into the couch is probative of Tate’s motive and intent to commit the murder. For the foregoing reasons, we conclude that the trial judge did not abuse his discretion by admitting the evidence.
The Appellant’s second point on appeal is: The State improperly placed the appellant’s character in issue in its case in chief.
A witness for the prosecution testified that to her knowledge, Tate was unemployed. The Appellant objected, and moved for a mistrial. The trial court overruled the objection and denied the motion for a mistrial. The Appellant considers that the effect of this testimony was to impugn his character in contravention of Ark. R. Evid. 404(a), in that it portrayed the appellant as a “worthless parasite living off the victim.” Therefore, the Appellant contends that the trial court erred in denying his motion for a mistrial.
A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the decision will not be disturbed on appeal. Id. We defer to the trial court, as it is in a superior position to determine the effect of the allegedly prejudicial remark on the jury. Id.
Rule 404(a) states in pertinent part:
(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.
Initially, it should be noted that the status of being unemployed, yet cohabitating with one who is employed, need not carry a connotation of parasitism, as the Appellant alleges, but may instead be merely symbiotic, i.e., mutually beneficial. The State argued that the unemployment of Tate was relevant to show motive, because the impending termination of his relationship with Portwood evidenced by the letter indicated that Tate was soon to lose the advantages that he derived from the relationship, such as free lodging and transportation, upon which he was dependent. This was a prospect which might be expected to arouse Tate’s ire, and thus also might be illuminating as a motive for Tate’s violent action against Portwood. This court has held that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the criminal act may, as a rule, be shown. See Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004). Furthermore, the State is entitled to produce evidence showing circumstances which explain the act, show a motive, or illustrate the accused’s state of mind. See Id.
It is doubtful whether the bald fact of unemployment, in relation to the crime here, constitutes the type of character evidence contemplated by Rule 404(a). In any case, because of the possible relevance that his unemployment had to Tate’s motive for the present crime, the trial judge did not abuse his discretion by declining to declare the drastic remedy of a mistrial.
The Appellant’s third point on appeal is: The prosecutor’s remarks in closing argument shifting the burden of proof to the appellant were reversible error.
During closing arguments for the penalty phase, the Appellant’s counsel referred to the fact that the State possessed the tape of the 911 call that Tate made after the alleged murder but did not play it. Subsequently, during its closing argument for the penalty phase, the State admitted that it had the 911 tape but did not play it, and additionally stated that the defense also could have played the tape, but chose not to do so. The Appellant objected and moved for a mistrial. The trial judge sustained the objection, but denied the motion for mistrial. He then admonished the jury to disregard the remarks of the prosecutor, and stated that those remarks were not evidence. The Appellant contends that the denial of his motion for mistrial was reversible error, because the prosecutor’s comments improperly shifted the burden of proof to the Appellant.
We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v. State, 316 Ark. 384, 386-87, 872 S.W.2d 72, 73 (1994). Generally, such an error may be cured by a remedial instruction from the court. Id. Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994).
In Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991), the prosecutor remarked during closing arguments upon possibly incriminating matters that were left unsaid by a witness for the State. The defense objected, and the trial court overruled. During the cross-examination of that witness, defense counsel had alluded to prior statements made by the witness which possibly contradicted his testimony. This court found that the defense counsel’s remarks opened the door to a response by the State on matters outside the testimony, and thus the trial court did not abuse its discretion by overruling the objection. Nelson, 306 Ark. at 460, 816 S.W.2d at 161.
In Cook v. State, supra, we upheld the trial judge’s denial of a motion for a mistrial when the prosecutor commented that the defense had failed to call an additional alibi witness to corroborate the testimony of a witness who was called. The trial court admonished the jury after that statement by the prosecutor. We noted that the remark was not about the defendant’s refusal to testify, in violation of his Fifth Amendment privilege against self incrimination, but instead concerned the credibility of a witness. We held that even if the prosecutor’s remark was an attempt to shift the burden, the trial court did not abuse its discretion by determining that the admonishment cured any possible prejudice. Cook, 316 Ark. at 387, 872 S.W.2d at 74.
In the present case, the prosecutor’s statements concerning the 911 tape were made after the defense counsel opened the door by remarking upon the State’s failure to play the tape, they did not concern the defendant’s failure to testify, and they do not amount to an appeal to the juror’s passions. An admonishment was given to the jury regarding the prosecutorial statements. In these circumstances, the trial judge did not manifestly abuse his discretion by refusing to grant the extreme remedy of a mistrial.
The Appellant’s fourth point on appeal is: The admission into evidence during the penalty phase of a photographic history of the victim’s life was a denial of due process.
The State introduced twelve photographs depicting the life of the victim during the penalty phase. In Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997), this court affirmed the trial court’s admission of a series of photographs during the penalty phase, which was much more extensive and detailed than the series in question here, consisting of some one hundred and sixty photographs depicting various scenes in the life of a murder victim. Also, first-degree murder is a Class Y felony; see Ark. Code Ann. § 5-10-102, which carries a sentencing range of ten to forty years or life. Ark. Code Ann. § 5-4-401 (a)(1). A defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence. See Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).
Tate was sentenced to forty years in prison. The maximum sentence he could have received was life in prison. Tate’s sentence was less than the maximum possible sentence for his conviction, and thus he cannot demonstrate that he was prejudiced by the sentence. Because the Appellant is unable to demonstrate that he was prejudiced by the sentence, we need not consider his due process argument regarding the introduction of the photographs.
Affirmed.
Hannah, C.J., dissents. | [
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Per Curiam.
This case is an appeal by Arnell Willis from an October 4, 2006, order of the St. Francis Circuit Court dismissing Willis’s challenge to the results from the June 13, 2006, runoff election for Arkansas’s Senate District 16 race. Willis filed a timely appeal from the lower court’s decision, and in accordance with Arkansas’s statutes, common law, and this court’s rules, Willis requested expedited consideration of this appeal.
Because this election matter must be decided before the November 7, 2006, General Election in order to determine a winner in the Primary and General Elections, we granted Willis’s request for expedited consideration and ordered simultaneous briefs on or before October 16, 2006, with simultaneous reply briefs due by October 23, 2006. This schedule was intended to allow this court to fully consider this election contest, so the winning candidates can be determined in the Primary and General Elections. This also permits the time (if necessary) for election officials to take whatever appropriate action is necessary to count ballots and certify the winning candidate for the District 16 race.
In the instant motion, counsel for Willis has apprised this court of a conflict between the scheduled oral argument of this case and a trial that is scheduled to begin in federal district court before Hon. J. Leon Holmes on October 23, 2006. Although we would like to accommodate all parties with a different schedule, our election laws give this court limited authority to do so. Our failure to act and decide this election case in advance of the General Election could render the issues in this case moot.
We can suggest two possibilities. One, considering the importance of the issue to be decided, our court has granted oral argument in this matter. Counsel could withdraw the request for oral argument if such actions would remove the conflict in scheduling. Two, we see that Judge Holmes’s letter to counsel provides, “unless -your election contest must be decided before the General Election on November 7th, I would ask that you request that the Supreme Court of Arkansas postpone the oral argument for one week.” Judge Holmes’s letter reflects his knowledge of Arkansas’s election laws, and foresees that many election challenges must be concluded before the regular or special elections involved. That situation is the one present before us in this case. Any delay in this court’s briefing schedule could cause the appeal to become moot and be dismissed.
Because the nature of this appeal makes it necessary to render a decision prior to the November 7, 2006, General Election, we must deny Willis’s motion requesting that oral argument be rescheduled for November 2, 2006. | [
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Jim Hannah, Chief Justice.
Kelsey Alexander McEwen appeals a September 30,2005, Order of the Sebastian County Circuit Court finding that upon the death of Anne Stodder McEwen, the beneficiary designation to her Individual Retirement Account with SolomonSmithBarney directed that the funds remaining in the account be divided 67% to Kelsey and 33% to the Anne Stodder McEwen Trust for the benefit of John Fred McEwen. The circuit court found that while the Sixth Amendment to Anne’s trust revoked Fund E, that same amendment added new trust terms that were in lieu of the revoked Fund E. Kelsey also appeals a finding by the circuit court that the equitable principle of unjust enrichment prohibited transfer of all the funds in the account to Kelsey. Fred appeals a finding by the circuit court awarding Kelsey $125,000 in fees and the circuit court’s refusal to remove Kelsey as trustee.
Facts
On July 10, 1997, Anne created the Anne Stodder McEwen Trust. The trust provided Fund E, “for Frederick John McEwen,” and Fund F, “for Kelsey McEwen Alexander.” Other funds were set up that are not relevant to this case.
On June 3, 2002, Anne filled out a beneficiary designation to her IRA naming Kelsey and Fund E of the Anne Stodder McEwen Trust for Frederick John McEwen as the primary beneficiaries in the event of Anne’s demise. However, on March 17, 2003, Anne executed a Sixth Amendment to her trust, which revoked that portion of her trust creating Funds E and F and in their place created a trust “for Frederick John McEwen” and a trust “for Kelsey McEwen Alexander.” Both Funds E and F, and the trusts created in the Sixth Amendment distributed the residue of Anne’s trust assets either directly or under trust one-third to Fred and two-thirds to Kelsey. Anne died on November 6, 2003. Kelsey believes that when Anne revoked that portion of her trust establishing Fund E, any right Fred had to the assets in Anne’s IRA were extinguished, and she remains as the sole beneficiary. Fred asserts that he remains a beneficiary.
Beneficiary Designation
An IRA constitutes a contract between the person who establishes the IRA for his or her retirement and the financial institution that acts as the custodian for the IRA. Smith v. Smith, 919 So. 2d 525 (Fla. Dist. Ct. App. 2006). An IRA includes designation of beneficiaries to receive the residue in the event of the retiree’s death. Id. The question presented in this case is who or what entity, if any, is identified on the beneficiary designation form by the references to “Fund E,” “Trust,” a social security number, and Fred’s birth date.
We are called upon to interpret the contract. In Coleman v. Regions Bank, 364 Ark. 59, 65, 216 S.W.3d 569, 574 (2005), we stated:
The first rule ofinterpretation of a contract is to give to the language employed the meaning that the parties intended. See First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992); Valmac Indus., Inc. v. Chauffeurs, Teamsters & Helpers Local Union No. 878, 261 Ark. 253, 547 S.W.2d 80 (1977). In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. Missouri Pac. R.R. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557 (1941). It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. First Nat’l Bank of Crossett, 310 Ark. 164, 832 S.W.2d 816.
The IRA Beneficiary Designation form at issue provides:
In the event of my death, pay the full value of my SolomonSmithBarney, Inc. Individual Retirement Account (in equal proportions in the case of multiple beneficiaries unless otherwise indicated) to the Primary Beneficiaryfies) listed below. I understand that if a primary beneficiary predeceases me, his or her share will be divided equally among all surviving primary beneficiaries. You may add the notation per stirpes (or “by rights of representation”) or per capita next to each name if you wish the children of a beneficiary that predeceases you to receive a share of this account.
Name of Primary Relationship Date of Birth Beneficiary Social Security No. Percent of benefits
Kelsey McEwen Daughter xx-xx-xxxx Alexander xxx xx xxxx 67%
Fund E of the Anne Trust xx-xx-xxxx Stodder McEwen Trust for Frederick John McEwen xxx xx xxxx 33%
From this form, it is clear that Anne wished that two beneficiaries receive the residue of her account upon her death. It is clear that Kelsey was to directly receive 67%. What is to happen to the remaining 33% is the issue.
Had Anne not executed the Sixth Amendment to her trust, Fund E would have been easily identified as Fund E of the Anne Stodder McEwen Trust for Frederick John McEwen. However, Fund E was revoked by the Sixth Amendment.
Kelsey argues that upon revocation, Fund E predeceased her under the terms of the IRA Beneficiary Designation form, leaving her as the only beneficiary. Predecease means to die before another. Black’s Law Dictionary 1216 (8th ed. 2004). Thus, Kelsey argues that the fund “died.” The IRA Beneficiary Designation form was obviously drafted under the assumption that the beneficiaries would be natural persons. A natural person is a human being. Black’s Law Dictionary 1178 (8th ed. 2004). This court has recognized the difference between natural and artificial persons. See Standard Pipeline Co. v. Burnett, 188 Ark. 491, 66 S.W.2d 637 (1933). We reject the argument that revocation of a trust term equates to predecease.
The terms of the beneficiary designation indicate that 33% is to be distributed to the Anne Stodder McEwen Trust for John Frederick McEwen. The Sixth Amendment simply substituted new trust terms providing for Fred, “in lieu of,” which is defined as “in the place of’ or “instead of.” Gramling v. Baltz, 253 Ark. 361, 362, 485 S.W.2d 183, 189 (1972). Thus, there was and there remains an Anne Stodder McEwen Trust, and that trust contains terms providing for distribution to John Frederick Mc-Ewen.
Additionally, we note that the beneficiary designation of Fund E also includes a reference to a social security number and birth date. The parties agreed that the birth date was Fred’s. The social security number was not identified, but the parties assert that it is either Fred’s or the tax identification number for Anne’s trust. In either case, the presence of the social security number, as well as the birth date, further support the conclusion that Fred is to receive 33% through Anne’s trust.
The IRA beneficiary designation made it clear that Anne intended Fred to receive one-third of the residue in trust. Flowever, as of the date of Anne’s death, the IRA beneficiary designation form indicated that the third was to be paid to Fund E of Anne’s trust, which benefitted Fred. The Sixth Amendment revoked Fund E. As of the date of Anne’s death, the beneficiary designation was uncertain. As the circuit court noted in its August 25, 2006, letter, attorney Pat Moore informed Anne by a letter of January 27, 2003, that the Sixth Amendment to the trust was “basically a restatement of the plan you already had, setting it in one document and making the additions you requested.” The Sixth Amendment specifically stated that the additions to benefit Fred were “in lieu of’ the revoked fund. Thus, the circuit court implicitly found an ambiguity and correctly applied parol evidence to resolve the uncertainty. Where there is uncertainty of meaning in a written instrument, an ambiguity is present. Black’s Law Dictionary 88 (8th ed. 2004). Where an ambiguity is found within the contract, parol evidence may be admitted. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). It may not be admitted to alter, vary, or contradict the written contract, but it may be admitted to prove an independent, collateral fact about which the written contract was silent. Id. The circuit court properly considered the letter, which supports the conclusion that Anne intended for Fred to receive in trust one-third of the remainder of her trust. We find no error in the decision that the beneficiary designation form directs that 33% of the residue in the IRA be paid into the Anne Stodder McEwen Trust for the benefit of Fred.
Kelsey also argues that the circuit court erred in basing its decision on unjust enrichment. Because we hold that the circuit court correctly awarded the funds to Fred based on the contract, whether the circuit court erred in asserting an alternative basis for its decision becomes moot. We do not address moot issues. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004).
Trustee Fees
Fred cross-appeals arguing that the trust only allowed for fees to be paid to a corporate trustee, and because Kelsey is not a corporate trustee, she is not entitled to fees. This court long ago adopted the American rule that a trustee is entitled to reasonable compensation for his or her time and trouble. Sutton v. Myrick, 39 Ark. 424 (1882). A trustee is entitled to reasonable compensation out of the trust estate for services as trustee, unless the terms of the trust provide otherwise or the trustee agrees to forgo compensation. Restatement (Third) of Trusts § 38 (2003). Where a trust specifically states that a trustee is to serve without compensation, such a provision might be enforceable. See, e.g., Hill v. Zanone, 184 Ark. 594, 43 S.W.2d 238 (1931). No such provision is found in Anne’s trust.
Fred argues that the fees were arbitrarily awarded. He also argues that Kelsey seeks compensation for tasks that were performed by others who have already been paid for their services. Kelsey testified that she requested $125,000 because her attorney told her to seek that amount. Accountant Norris Taylor reportedly told her to ask for a higher figure; however, Taylor did not testify, and Kelsey testified that she was unaware of the methodology Taylor used in reaching the sum sought in fees.
Where a trustee has rendered services for which he or she has not been fully compensated, the court should allow compensation out of the trust principal or income. George Gleason Bogert, The Law of Trusts and Trustees, § 975, at 121 (2d ed. 1983). As noted in our early cases, the trustee is entitled to a reasonable fee. In arriving at a reasonable fee, the circuit court may consider such factors as: the time consumed in carrying out duties under the trust; the costs the trustee may have incurred; the nature of the services performed, including whether such services were routine or required skill and judgment; fees received by the trustee from beneficiaries to compensate the trustee; the fidelity or disloyalty displayed by the trustee; and the value of the services offered by the trustee in light of the trustee’s experience and skill level. See id. at § 977, at 154 (2d ed. 1983). This matter is remanded for reconsideration of compensation of the trustee consistent with this opinion.
Removal of the Trustee
On cross-appeal, Fred also alleges that the circuit court erred in refusing to appoint a new trustee. Fred asserts that Kelsey is biased, that there is a hostile relationship between him and Kelsey, and Fred also expresses concern with respect to the division of personal property. Kelsey argues that Fred failed to obtain a ruling on this issue and is precluded from raising the issue on appeal. The September 30, 2005, order states that, “[t]he request by Fred that Kelsey be replaced in her duty to divide the personal property is denied.” A ruling was obtained.
The removal of a trustee lies in the sound discretion of the trial court. Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981). The circuit court suggested but did not order that an independent party make the division due to the ill feelings between the parties. Mutual hostility between beneficiaries and the trustee is grounds for removal. Blumenstiel v. Morris, 207 Ark. 244, 180 S.W.2d 107 (1944). Fred alleges mutual hostility but does not develop his argument. We will not develop an issue for a party at the appellate level. Carter v. Four Seasons Funding Corp., 351 Ark. 637, 97 S.W.3d 387 (2003). No abuse of discretion is shown on the record presented.
Affirmed on direct appeal; affirmed in part on cross-appeal and reversed and remanded in part on cross-appeal.
Glaze, J., dissenting in part. | [
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Per Curiam.
A judgment and commitment order entered February 4, 2000, indicates that a jury found petitioner Michael Lamont Thomas guilty of rape and sentenced him to 480 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Thomas v. State, CACR 00-643 (Ark. App. January 23, 2002). In 2004, petitioner filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of2001. That petition was denied, and this court dismissed the appeal for lack of jurisdiction. Thomas v. State, CR 05-934 (Ark. May 18, 2006) (per curiam).
Proceeding pro se, petitioner now requests this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis . The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
Petitioner asserts grounds for reinvesting jurisdiction in the trial court, as follows: (1) the prosecution put on testimony that petitioner alleges was false concerning the transportation of the rape kit from the hospital to the Arkansas State Crime Laboratory; (2) in affidavits, the victim, a girl who was thirteen years old at the time of the crime, later recanted her testimony, and her mother indicated that she had told the prosecution that she would testify that she knew her daughter was lying about the rape. We do not find that petitioner’s claims are cognizable for relief under error coram nobis, and even if those claims were cognizable, petitioner has failed to exercise diligence in pursuing coram nobis relief.
Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). For the writ to issue following the affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). The function of the writ is- to secure relief from a judgment rendered while there existed some fact which 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 judgment. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts, 336 Ark. at 583, 986 S.W.2d at 409.
Petitioner’s claims do not fall within any of the recognized categories. While he attempts to assert that the prosecution withheld material evidence, petitioner does not state facts that support that proposition or that are otherwise cognizable in a coram nobis proceeding.
In his first claim, petitioner asserts that a police officer falsely testified that he was the officer who transported the rape kit from the hospital to the Arkansas State Crime Laboratory. Yet it does not appear that the prosecution withheld any evidence on the point. Petitioner, in fact, attaches a statement from the witness list provided by the prosecution concerning another officer transporting the rape kit in support of his argument. The evidence was available to petitioner and his counsel at trial.
Nor has petitioner shown that the evidence he claims was withheld was material. As the State points out in its brief, the chain of custody was well established without a specific demonstration concerning the transportation of the rape kit from the hospital to the crime lab. The doctor who performed the examination of the victim, the nurse who sealed the kit, and the forensic biologist who opened the kit at the crime lab, all identified the kit. The biologist opening the kit did indicate that she was the first to open the kit, and there was later testimony concerning procedures to ensure the samples were not contaminated at the lab. In addition, the testimony indicated that the vaginal swab from the rape kit provided DNA that was consistent with both that of the victim and the petitioner, further establishing that the kit was indeed that taken during the victim’s examination. Petitioner has not shown any indication that tampering occurred prior to the opening of the kit at the lab, or after the kit was opened at the lab, so as to call the transfer to the crime lab into question.
Petitioner also attempts to characterize the victim’s recanting her testimony and the mother’s statement that she was aware that her daughter was lying as evidence that was withheld by the State. The statements from the victim and her mother that were attached to the petition are dated October of 2000. The victim did not recant until after her testimony at trial. As for any statement by her mother that may have been made at trial, the mother’s name appeared on the witness list, and she was therefore available to petitioner and his counsel to be interviewed prior to trial. Petitioner has not shown that any evidence was withheld.
Nor is a claim of a statement by the victim recanting her testimony cognizable in a error coram nobis proceeding. Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940); see also Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). Moreover, in this case there was testimony that semen found in the victim’s vagina was consistent with petitioner’s DNA profile with an estimated frequency of one in 56 million. There was sufficient evidence of the charge even without the victim’s testimony. Petitioner has shown neither the type of fundamental error nor facts which would have prevented rendition of the judgment so as to warrant this court reinvesting jurisdiction to consider a petition for writ of error coram nobis.
Furthermore, petitioner has not exercised due diligence as required to obtain relief. There is no specific time limit for seeking a writ of error coram nobis, but due diligence is required in making an application for relief and in the absence of a valid excuse for delay, the petition will be denied. Echols v. State, 360 Ark. 332, 202 S.W.3d 1 (2005). Due diligence requires that 1) the defendant be unaware of the fact at the time of trial; 2) he could not have, in the exercise of due diligence, presented the fact at trial; or 3) upon discovering the fact, did not delay bringing the petition. Id.
As already noted, petitioner was aware of the facts asserted in his claims at trial or shortly thereafter. Petitioner has asserted no good cause for failure to bring the petition more than five years after discovering the facts asserted here. Indeed, petitioner appears to have raised the issue of the victim recanting her testimony, and at least some of the issues concerning the chain of custody, in his direct appeal. While the court of appeals did not reach the merits of those claims, petitioner could have certainly raised the claims in a petition such as this long before he chose to do so. Accordingly, we decline to reinvest the trial court with jurisdiction to consider the petition for writ of error coram nobis.
Petition denied.
For clerical purposes, the instant petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was assigned the same docket number as the direct appeal of the judgment.
The State also cites Harris v. State, CR94-1273 (Ark. March 29,2001) (per curiam) in support of this position, but Harris is not a published case. As we have stated in Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006) (per curiam) and Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2005), unpublished opinions will not be considered as authority and should not be cited to this court. | [
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Per Curiam. A
jury found appellant Calvin Lamont Walker guilty of delivery of cocaine and sentenced him to 420 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Walker v. State, CACR 04-456 (Ark. App. April 27, 2005). Appellant timely filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing. Appellant brings this appeal of that order.
Appellant asserts three points on appeal, as follows: (1) the trial court erred in failing to find trial counsel was ineffective; (2) the trial court erred in denying the petition without a hearing; (3) the trial court erred in denying a request to amend the petition and to compel production of trial counsel’s file. We find no error, and affirm the trial court’s order.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
Appellant’s first point alleges that the trial court erred in failing to find that trial counsel was ineffective. Appellant contends that counsel was ineffective as the result of a conflict of interest, because he failed to disclose his poor health to appellant, and because he failed to object to introduction of the cocaine at trial.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). A claimant must show that counsel’s performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair trial. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Each of appellant’s claims that counsel was ineffective fails under at least one of the two prongs of this test.
Appellant’s first claim of ineffective assistance asserts a conflict resulted from trial counsel’s investigation by the Arkansas Supreme Court Committee on Professional Conduct. In his petition and on appeal, appellant likens this situation to cases were trial counsel was under investigation by the same office prosecuting his client or the investigation was otherwise directly involved with the facts of the client’s case. In its order denying postconviction relief, the trial court found that the investigation here did not raise a potential conflict, and noted that the prosecutor’s office was not involved. The trial court’s findings on this issue were not clearly erroneous.
To prevail on a claim of ineffectiveness due to a conflict of interests, a defendant must demonstrate the existence of an actual conflict of interest that affected counsel’s performance, as opposed to a mere theoretical division of loyalties. Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief, but in the absence of an actual conflict, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Id. Appellant does not offer any demonstration of prejudice, but asserts that the investigation resulted in an actual conflict.
The investigation of trial counsel by the Committee was not conducted by the same office prosecuting the case against appellant. Nor does it appear that the underlying facts involved in appellant’s case at trial were in any way entwined with those under investigation by the Committee. Even in those situations that are inherently fraught with potential conflict, such as those where an attorney represents multiple defendants, the defendant asserting a claim of conflict must show that counsel actively represented conflicting interests by a showing of how the conflict actually prejudiced his defense. See Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005) (per curiam).
Here, it is not clear how the outcome of appellant’s trial, the strategy used or any of the decisions required of counsel in conducting appellant’s defense would have had any impact on the investigation or a decision by the Committee concerning trial counsel. Appellant points to no specific instance where a decision by counsel may have been adversely affected by the investigation, and does not indicate that any conduct in this case was included in the Committee’s review at that time. To the extent that counsel appears to argue that any effect, even if it may appear a positive one, must be presumed adverse and should require the trial court to find an actual conflict of interest, we do not agree. The only potential effect that may be apparent in the situation presented here is the possibility that counsel may have felt pressured to exert greater care and diligence so as not to bring additional cases under the Committee’s review. A conflict by its nature requires opposite interests, not those aligned.
The cornerstone principle in all conflict cases is whether prejudice will result to the client as a result of the conflict of interest and that prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical. Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003). If the fact that trial counsel was under investigation by the Committee actually may have had a beneficial effect on counsel’s performance, the only likely potential impact on counsel’s actions that appears obvious, then appellant has not demonstrated an actual conflict.
Appellant next contends that he was effectively denied counsel because counsel failed to disclose certain health problems to him. Appellant has not, however, argued that any prejudice resulted from this alleged denial of his right to counsel, or even that counsel’s health problems had any effect on his representation. Appellant does not contend that he would have declined or dismissed counsel and sought other representation had he been advised of these health problems. Appellant only claims that he was denied his right to make an informed choice of counsel because this information was not provided to him.
The exceptions to the test in Strickland that recognize a presumption of prejudice fall within one of three categories, and are as follows: (1) where assistance of counsel has been denied completely during a critical stage of the proceedings; (2) where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; (3) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Bell v. Cone, 535 U.S. 685 (2002). Appellant does not fall within any of these exceptions and must therefore show prejudice to succeed on his claim. Because appellant failed to make a showing of prejudice, we cannot say that the trial court was clearly erroneous in concluding that appellant’s claim was deficient.
Appellant’s last claim of ineffective assistance alleges that counsel failed to object to the introduction of the cocaine on the basis that the prosecution had not established an adequate chain of custody. Appellant contends that trial counsel should have objected on the basis that there were inconsistencies in the descriptions of the substance and the number of packages that were seized, as compared to the description of what was tested. The trial court found that the objection would not have been successful, if made, and that trial counsel did argue the inconsistencies to the jury.
Once again, we cannot say that the trial court’s findings were clearly erroneous. Appellant contends that inconsistencies in the description of the texture of the substance and the number of packages would have sustained an objection to the admission of the evidence. He cites Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), where we indicated that the proof of the chain of custody for interchangeable items like drugs or blood needs to be more conclusive, and found that the trial court had abused its discretion in receiving a substance into evidence under circumstances where there were inconsistent descriptions of the substance provided by the undercover officer and the chemist who performed the analysis.
This court has consistently held that the purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). While the State is not required to eliminate every possibility of tampering with the evidence, the trial court must be satisfied within a reasonable probability that there has been no tampering. Id. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id.
Here, the circumstances are more similar to those in Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001), than to those in Crisco. In Guydon, we affirmed on admission of the drugs because we determined that the varied descriptions as to weight were not so markedly different and could have been attributed to differing sensitivity of the scales used. In Crisco, the State did not recall the undercover officer in order to identify the substance. Here, the undercover officer did identify the substance as what was received from the informant and passed onto the next officer in the chain, and she further testified that the description in her report was not accurate. Inaccuracies in the number of packages reported were not significant in that they could have been attributed to smaller packages being initially packaged together.
Because the substance was identified by the undercover officer, we cannot say that the conflicting evidence was so significant that the evidence must have been excluded, and we therefore hold that the trial court was not clearly erroneous in determining the objection would not have been sustained. Counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001).
Appellant next asserts that the trial court erred by denying the petition without a hearing. An evidentiary hearing should be held in a postconviction proceeding unless the files and the records of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). The trial court has discretion pursuant to Ark. R. Crim. P. 37.3(a) to decide whether the files or records of the case are sufficient to sustain the court’s findings without a hearing. Greene, 356 Ark. at 66, 146 S.W.3d at 877. We cannot say that the trial court abused that discretion. We would agree that the petition and record are sufficient in this case to support the trial court’s findings without further factual inquiry.
Appellant’s last point asserts error in the trial court’s refusal to order production of trial counsel’s files and to permit amendment of the petition following review of that file. The trial court denied the request because appellant had provided no proffer concerning what information he hoped to obtain or what additional deficiencies might be revealed. Rule 37.2(e) of the Arkansas Rules of Criminal Procedure provides that a petition may be amended with leave of the court before the court acts upon the petition. The rule clearly provides that permission to amend is discretionary. We cannot say that the trial court abused that discretion by denying leave to amend, as the request to amend was tied to the request for production of the files and we cannot say that the trial court erred by refusing to order production of trial counsel’s files.
Appellant argues that the court’s requirement that he state specifically what he hoped to find, or what other errors might be asserted, left him in a Catch-22 situation, unable to comply without having the files. He asserts that justice and fundamental fairness require that he have this opportunity, and that the trial court had, in essence, penalized him for his trial counsel’s unprofessional behavior in refusing to provide the files. The State responds that, because a Rule 37.1 proceeding is intended to address mistakes at trial, appellant should be able to prepare his petition from the record. We would not agree that under all circumstances the record would contain all the information needed to provide sufficient facts to support a Rule 37.1 petition. However, a defendant’s own knowledge of discussions with trial counsel, in combination with the record, would seem to provide a sufficient basis to articulate any areas of concern as to counsel’s performance.
It is true that this court has stated that a hearing on a Rule 37.1 petition is not available to a petitioner in hopes of finding grounds for relief. Greene, 356 Ark. at 67, 146 S.W.3d at 877. Access to trial counsel’s files in order to prepare for a Rule 37.1 proceeding and filing the petition, is not, however, an issue that we have previously addressed. We hold that, while the trial court may, at its discretion, require trial counsel to provide access to those files, just as counsel may be required to provide testimony, the trial court does not abuse that discretion by requiring a defendant to state with specificity the areas of concern as to counsel’s performance, the portions of trial counsel’s records that are required to investigate those concerns, and how those records are relevant to the inquiry. We therefore hold that, as to appellant’s final point, as well as the previous points, no reversible error occurred.
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Jim Gunter, Justice.
Appellant Ronny Deaver, as administrator for the Estate of Faye Deaver, appeals the circuit court’s order striking and dismissing his complaint with prejudice for failing properly to revive Faye Deaver’s claims after her death. We hold that the action was properly revived under Arkansas law, and we reverse the order of the circuit court.
On November 1, 2002, Faye Deaver and her son, Ronny Deaver, filed a complaint against the appellees: St. Andrews Nursing Home, various entities that owned the nursing home, and the administrator of the nursing home. The complaint alleged breach of contract, negligence, and res' ipsa loquitur. Faye died on May 3, 2003.
On October 28, 2003, appellant filed a pleading styled as follows: “PLAINTIFFS’ SUGGESTION OF DEATH UPON THE RECORD, MOTION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR, AND REQUEST FOR ORDER OF SUBSTITUTING PARTIES.’’Appellant stated in this pleading that Faye had died, and he attached a death certificate. He also requested, pursuant to Ark. R. Civ. P. 25, the circuit court to appoint him as the special administrator for his mother with the power to prosecute the case on behalf of her estate and to order a substitution of the proper parties. In an order entered November 5, 2003, the circuit court appointed appellant as the special administrator for his mother, Faye, “with the power to prosecute this case on behalf of the Estate of Faye Deaver and its beneficiaries,” and also ordered “a substitution of the Special Administrator as the proper party to pursue this case on behalf of the Estate of Faye Deaver and its beneficiaries.”
On March 7, 2005, appellant, acting individually and as administrator of his mother’s estate, filed an amended complaint, reasserting the breach-of-contract and negligence claims, deleting any reference to res ipsa loquitur, and alleging a violation of the Arkansas Long-Term Care Facility Resident’s Rights statutes. See Ark. Code Ann. §§ 20-12-1201 to 1209 (Repl. 2005). The appellees moved to strike, asserting that appellant had “neither petitioned for nor received an order of revival as required by Ark. Code Ann. § 16-62-108.” They argued further that because more than one year had passed since Faye’s death, the complaint must be dismissed with prejudice pursuant to Ark. Code Ann. § 16-62-109. The circuit court granted the motion and dismissed the complaint with prejudice.
Appellant appealed to the Arkansas Court of Appeals, which reversed the circuit court’s decision in Deaver v. Faucon Properties, Inc., 94 Ark. App. 370, 231 S.W.3d 100 (2006). We granted appellees’ petition for review pursuant to Ark. Sup. Ct. R. 2-4 (2005). When this court grants a petition for review of a decision of the court of appeals, it reviews the case as though it had originally been filed in the Arkansas Supreme Court. Ark. Sup. Ct. R. l-2(e); Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).
This case requires us to construe the requirements of the revivor statutes in conjunction with Rule 25 of the Arkansas Rules of Civil Procedure. We review issues of statutory construction and the interpretation of the rules of civil procedure de novo. See Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004).
On appeal, appellant argues that the lawsuit was properly-revived by the circuit court’s order of November 5, 2003, appointing him special administrator for his mother and ordering substitution of parties pursuant to Ark. R. Civ. P. 25. Therefore, he argues, the circuit court’s order striking his complaint and dismissing the lawsuit was error. Appellees respond, arguing that appellant failed properly to revive the action of Faye Deaver because he never obtained an “order to revive” in accordance with the revivor statutes, specifically citing Ark. Code Ann. §§ 16-62-105, 108, and 109. Appellees argue that an order pursuant to Ark. R. Civ. P. 25 is “insufficient to revive an action pursuant to the mandate of Ark. Code Ann. § 16-62-105.”
I. Historical Overview
In order to determine whether this action was properly revived under Arkansas law, a brief overview of the law of revivor — and survival, which is often confused with revivor — is helpful. Revival refers to the continuation of an “action” upon the death of a party; survival refers to the continuation, or survival, of a “cause of action” upon the death of the injured party. See Black’s Law Dictionary 1187, 1296 (5th ed. 1979). An “action” is an ordinary judicial proceeding. See In re Martindale, 327 Ark. 685, 689, 940 S.W.2d 491, 493 (1997); Black’s Law Dictionary 26 (5th ed. 1979). In Arkansas, “civil actions” embrace all actions formerly denominated “suits” in equity and “actions” at law. Ark. R. Civ. P. 2; see also Black’s Law Dictionary 26 (5th ed. 1979). A “cause of action” is the set of facts that gives rise to the judicial proceeding. See Black’s Law Dictionary 201 (5th ed. 1979). Therefore, the cause of action is born when certain facts occur that entitle the plaintiff to relief, and the action occurs when a complaint based upon those facts is filed with a court. Ark. R. Civ. P. 3.
“The substitution of a new party to proceed with the prosecution or defense of a claim is the revivor of an action. The death of a party to a legal proceeding, where the cause of action survives, suspends the action as to decedent until someone is substituted for decedent as a party.” 1 C.J.S. Abatement and Revival § 155 (emphasis added); see also Anglin v. Cravens, 76 Ark. 122, 124, 88 S.W. 833, 834 (1905) (“[w]hen the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative”).
“When the suit is revived,” said this court in the early case of Bentley v. Dickson, 1 Ark. 165, “all the pleadings stand in the same attitude as if they had never been abated by death. The names only are changed upon the record, and it is a legal fiction by which the writ, declaration, plea, and other proceedings are all considered as there standing in the name of the executor or administrator.”
Vandiever v. Conditt, 110 Ark. 311, 162 S.W. 47 (1913) (emphasis added). “An action cannot be revived unless the cause of action survives. However, the survival of a cause of action [internal citation omitted] and the revival of an action are different in that the former is a matter of right and the latter a matter of procedure.” 1 C.J.S. Abatement and Revival § 155 (emphasis added).
In the case at bar, neither party is arguing that the cause of action has not survived. Therefore, for purposes of this appeal, we assume the cause of action has survived Ms. Deaver’s death. The question in this case is whether the action, or lawsuit, was properly revived. This is a matter of procedure.
II. Statutes /Rules
We turn now to the relevant statutes and procedural rules. Survival and abatement of actions are addressed in Ark. Code Ann. § 16-62-101 to 111. Sections 16-62-101 and 102 concern survival of a cause of action and are not relevant here. Section 16-62-105, relied upon by appellees, states that, upon the death of one of the parties to an action, the action may be revived if the right of action survives. Ark. Code Ann. § 16-62-105(a) (Repl. 2005). The statute then states that the “revivor shall be by an order of the court” and sets forth the procedures to obtain such an order. Ark. Code Ann. § 16-62-105(b) - (e) (Repl. 2005). Section 16-62-108 sets forth an exception to the rule allowing an action to be revived, essentially acting as a statute of limitations (which may be waived with consent). It states as follows:
16-62-108. Reviver of actions against plaintiffs representative or successor - Exception.
An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made. Where the defendant shall also have died, or his or her powers have ceased in the meantime, the order of reviver on both sides may be made within the period provided by this section or the period provided by § 16-62-107(b), whichever shall be longer.
While these statutes governed revivor and the procedure for obtaining an order of revivor until 1986, we deemed subsections (a)-(e) of Ark. Code Ann. § 16-62-105 superseded by the Arkansas Rules of Civil Procedure in a per curiam opinion dated November 24,1986. See In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). Therefore, the law governing the procedure for obtaining an order of revivor in Arkansas, although technically no longer referred to as “revivor,” is primarily Ark. R. Civ. P. 25 (Rule 25). We recognize that in Arkansas Department of Health and Human Services v. Smith, 366 Ark. 584, 237 S.W.3d 79 (2006), we mistakenly set forth the provisions of Ark. Code Ann. § 16-62-105 (Repl. 2005), stating that they governed the revival procedure. Thus, to the extent that Smith conflicts with our holding today, it is overruled.
Rule 25 states in pertinent part as follows:
(a) Death. (1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and such substitution may be ordered without notice or upon such notice as the Court may require. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.
(2) Upon the death of a plaintiff the proper party for substitution shall be his personal representative or, where the claim has passed to his heirs or to his devisees, the heirs or devisees may be substituted for the deceased party. . . .
(3) Upon the death of any party the Court before which such litigation is pending may, upon the motion of any party, appoint a special administrator who shall be substituted for the deceased party. The powers of such special administrator shall extend only to the prosecution and defense of the litigation wherein he is appointed.
(e) Limitation of Rule. The provisions of this rule shall in no way allow a claim to be maintained which is otherwise barred by limitations or nonclaim, nor shall the provisions of this rule be determinative of whether or not a claim for or against a deceased party survives his death.
III. Case Law
Appellees argue that the provisions of the revivor statutes are separate and distinct from Rule 25. In their brief, appellees cite and set forth the provisions found in Ark. Code Ann. § 16-62-105(a) and (b), stating that revivor must be accomplished through an order to revive. Then, relying upon Nix v. St. Edward Mercy Medical Center, 342 Ark. 650, 30 S.W.3d 746 (2000), appellees argue that Rule 25 was not designed to deal with survival of actions and that the substantive requirements of revivor, accomplished procedurally through an order to revive, cannot be superseded by Rule 25.
First, the procedures set forth in Ark. Code Ann. § 16-62-105(a) and (b) were specifically superseded by the Arkansas Rules of Civil Procedure in 1986 and, therefore, no longer govern the procedure for obtaining an order of revivor. Second, appellees fail to explain exactly what these “substantive requirements of revivor” include. The only “substantive requirement” in the statutes cited by appellees is the time limitation provided in Ark. Code Ann. § 16-62-108. This statute states that an order to revive may not be made after the expiration of one year unless the defendant consents. In this case, the court entered its order of substitution seven months after Faye Deaver’s death; therefore, there has been no violation of section 108’s time limits. Revivor is simply the substitution of a new party to proceed with the prosecution or defense of a claim. 1 C.J.S. Abatement and Revival §155. This is exactly what the circuit court accomplished in this case by ordering the appointment of appellant as special administrator to pursue the prosecution and substituting him as the proper party to pursue the case under Ark. R. Civ. P. 25.
Finally, appellees reliance on our decision in Nix is misplaced. The issue in Nix was simply whether Rule 25 supersedes the substantive time limitation imposed on revivor by Ark. Code Ann. § 16-62-108. We held that it did not. The plaintiff in Nix filed an action individually and as his wife’s guardian for medical injuries sustained by his wife. His wife died while the action was pending. Thirteen months after her death, the defendants filed a motion to strike for failure to revive within one year. Plaintiff had filed neither a suggestion of death nor a motion for substitution pursuant to Rule 25. We affirmed the circuit court’s order of dismissal, holding that Rule 25 did not extend the one-year statute of limitation on revivor set forth in Ark. Code Ann. § 16-62-108. Nix, 342 Ark. at 654, 30 S.W.3d at 749.
The case at bar does not concern section 108’s time limitation. It is clear from the record that the court’s order pursuant to Rule 25 was entered well within one year of Faye Deaver’s death. The issue before us is whether the circuit court’s order pursuant to Rule 25 — which order did not contain the word revivor — was sufficient to revive this action. We hold that it was. Revivor is a procedure used upon the death of a party to a legal proceeding in which a new party is substituted to proceed with the prosecution or defense of the claim. While Rule 25 does not specifically refer to an “order to revive,” this rule has governed the method for obtaining an order of substitution upon the death of a party since 1986, when we held that the Arkansas Rules of Civil Procedure superseded the revivor procedures set forth in Ark. Code Ann. § 16-62-105. Rule 25 does not determine whether a cause a action survives the death of a party, permit a claim which is otherwise barred by law, or extend the statute of limitations. See Nix, 342 Ark. at 653, 30 S.W.3d at 748. It simply governs the procedure for obtaining a substitution of a party upon a party’s death where the cause of action survives, the claims in the action are otherwise permitted by law, and the motion is made within the time limits prescribed in Ark. Code Ann. § 16-62-108.
We will not reverse a circuit court’s decision on the basis of an argument not raised by the appellant. See Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967). We note that, while appellant did not specifically cite our 1986 per curiam opinion deeming Ark. Code Ann. § 16-62-105(a) - (e) superseded by the Arkansas Rules of Civil Procedure, he did argue that the circuit court’s order pursuant to Rule 25 properly revived his action and that an order pursuant to the revivor statutes, including section 105, was unnecessary. He is correct, and it is this very point upon which we reverse. See, e.g., Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998) (a court does not act sua sponte when its reversal is “prompted” by appellant’s argument).
We hold that the circuit court’s order pursuant to Rule 25 properly revived appellant’s action; accordingly, we hold that the circuit court erred in granting appellees’ motion to dismiss.
Reversed and remanded.
In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986).
We note that the A.C.R.C. Notes to Ark. Code Ann. § 16-62-105 (Repl. 2005) include a reference to In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). | [
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Robert L. Brown, Justice.
The appellant, Council of Co-Owners for the Lakeshore Resort and Yacht Club Horizontal Property Regime (Council), appeals from an order granting the motion to dismiss of the appellee, Glyneu, LLC. The Council raises several points for reversal. None of the points has merit, and we affirm.
The Council is an organization of condominium unit owners and was formed pursuant to the Arkansas Time Share Act and the Declaration of Horizontal Property Regime Master Deed and By-Laws for Lakeshore Resort and Yacht Club in Hot Springs. The Council owns approximately 20% of the time-share intervals in a lakefront condominium building in Hot Springs known as the Lakeshore Resort and Yacht Club Horizontal Property Regime (condominiums). The condominiums are located adjacent to a hotel now owned by Glyneu. The Council acquired its 20% ownership interest in the condominiums in 2001 from the former owners, known as the Kessler Class, in a foreclosure proceeding.
The condominiums and the hotel have been the subject of multiple lawsuits and appeals to this court. As a result, a complete recitation of the facts involved in this current appeal can be found in two previous opinions by this court — National Enterprises, Inc. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005), and National Enterprises, Inc. v. Lake Hamilton Resort, Inc., 355 Ark. 578, 142 S.W.3d 608 (2004). What follows is a brief summary of the facts.
In 1983, Painters Point Development Company, L.P., developed the land into the resort that now includes the hotel and condominiums. Union Planters National Bank provided the financing for the development. In 1985, Painters Point conveyed the condominiums to Lakeshore Resort and Yacht Club Limited Partnership (Lakeshore Partnership), and Union Planters released its mortgage lien on the condominium property. Later in 1985, Painters Point and the Lakeshore Partnership entered into a license agreement which allowed Lakeshore Partnership and its condominium owners to use the hotel’s recreational amenities and parking. A memorandum of the agreement was recorded in the real estate records.
Lakeshore Partnership then sold approximately 20% of the condominiums to a group of people now known as the Kessler Class, and 80% of the condominiums were acquired by its general partner — Hanson, Hooper & Hays, Inc. (Hansen Hooper). In 1988, Union Planters foreclosed on Painters Point’s interest in the hotel, and a foreclosure decree was entered in 1990. The hotel property was purchased at the foreclosure sale and ultimately sold to Lake Hamilton Resort.
In 1993, the mortgagee’s successor in interest for the Hansen Hooper purchase began foreclosure proceedings on the 80% condominium interest. National Enterprises, Inc. bought the note and mortgage. Lake Hamilton Resort offered $275,000 to National Enterprises for the note and mortgage, and National Enterprises counter offered for $1 million. Lake Hamilton Resort considered the counter offer “totally off base,” and negotiations terminated.
In December 1993, Lake Hamilton Resort advised National Enterprises and the Kessler Class that they could no longer use the hotel’s parking and recreational amenities and that utilities to the condominiums would be disconnected. National Enterprises, which by now had purchased the 80% interest in the condominiums, sued Lake Hamilton Resort to enforce the license agreement and easements by necessity for utility usage and ingress and egress. The trial court ruled in its 1994 order that any rights National Enterprise might have had under the license agreement were foreclosed by the 1990 foreclosure decree. The court further found that the warranty deed executed to National Enterprises’s predecessor in interest did not contain any grants of easement over the hotel property and that there was no implied easement by necessity or prescriptive easement for use of the utilities.
In August 2005, Glyneu, an Arkansas limited liability company, purchased the hotel at a foreclosure sale. The Council, which had since acquired 20% of the condominiums from the Kessler Class, filed suit against Glyneu for a declaratory judgment that the Council had the right to use the hotel’s recreational amenities, parking, and utilities and that the 1990 foreclosure decree did not affect those rights. The circuit court granted Glyneu’s motion to dismiss, based on its prior decision in the 1994 order. The Council now appeals.
I. Dismissal Under Either the 1994 Order or the Kessler Decision.
The Council makes three distinct arguments under this point. First, it claims that neither the 1994 order nor the Kessler decision is res judicata as to the Council’s current cause of action. It also asserts that the 1994 order has no stare decisis effect. Finally, it contends that the Kessler decision also has no stare decisis effect. Glyneu responds that, though it may apply, the circuit court’s dismissal was not based on res judicata. Glyneu argues that the record clearly shows that the circuit court based its decision on the doctrine of stare decisis in deciding to follow its own precedent established in the 1994 order.
The Council first contends that res judicata should not apply in this case because it was not a party to the 1994 order nor to the Kessler decision. The doctrine of res judicata consists of “two facets, one being issue preclusion and the other claim preclusion.” Beebe v. Fountain Lake School Dist., 365 Ark. 536, 231 S.W.3d 628 (2006). Claim preclusion bars the relitigation of a subsequent suit when five elements are met: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim' or cause of action; and (5) both suits involve the same parties or their privies. See id.
Regarding the 1994 order, the first four elements are met. It was a final judgment on the merits. The action was based on proper jurisdiction. It was fully contested in good faith, and the current suit involves the same cause of action. However, there is no evidence that the fifth element has been met. The two suits do not involve the same parties or their privies. The Council did not acquire its interest in the time-share from National Enterprises. Plus, the Council did not attempt to intervene in the 1994 action until 2000. The circuit court ruled that this attempt at intervention was untimely. Accordingly, the Council was not a party to the 1994 order, and there is no evidence that the Council is in privity with any party to the prior judgment. Therefore, claim preclusion does not bar the current suit.
Issue preclusion, or collateral estoppel, is the second facet of res judicata, and it bars the relitigation of issues that were actually litigated by the parties in a previous suit. See Beebe, supra. The issue must have been previously litigated and determined by a valid and final judgment, and the following four elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. See id.
Furthermore, for collateral estoppel to apply, the party against whom the prior decision is being asserted must have had a full and fair opportunity to litigate the issue. Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005). In this regard, this court has abandoned the requirement for collateral estoppel that both parties to a prior judgment must be bound for either to be bound. See Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). One treatise discusses this development as follows:
At one time, the utility of issue preclusion was limited by an additional requirement known as “mutuality of estoppel.” Under this concept, neither party to a lawsuit was bound by a prior judgment unless both were bound. In Fisher v. Jones, the Arkansas Supreme Court abolished mutuality when issue preclusion is asserted defensely, i.e., against a plaintiff who has previously litigated the same issue against a different defendant.
David Newbern & John J. Watkins, 2 Arkansas Practice Series: Civil Practice and Procedure § 34.3 at 668 (4th ed. 2006). In the instant case, though the current issue is the same as that decided in the 1994 order, the Council did not have a full and fair opportunity to litigate the issue in 1994, since it was not a party to that action. Because this criterion was not met, issue preclusion does not decide this case.
The Council, however, also argues that the 1994 order has no stare decisis effect on the current case. We disagree. As a general rule, courts are bound to follow prior case law under this doctrine. Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005). This court has said:
We have held that there is a strong presumption of the validity of prior decisions. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000). Although we do have the power to overrule previous decisions, it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result. Id. The policy behind stare decisis is to lend predictability and stability to the law. Id. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. Id. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Id.
Union Pacific Railroad Co. v. Barber, 356 Ark. 268, 287-88, 149 S.W.3d 325, 337 (2004).
In the case at hand, the issue before the circuit court in 2006 was essentially the same as that decided by the court in 1994. Both plaintiffs asserted that they were entitled to usage of the hotel’s parking, recreational amenities, and utilities. In 1994, the trial court found that the license agreement providing for condominium usage of the hotel’s recreational amenities and parking did not survive the 1990 foreclosure decree and that the only easement that existed was an easement for ingress and egress to the condominiums. Because the issue presented here is essentially the same as that decided in the 1994 order, the court granted Glyneu’s motion to dismiss, stating that it would not reverse its ruling in the previous order.
Moreover, we do not believe that great injury or injustice has occurred in this case. When the Council acquired the time-share intervals in 2001, it was aware of the 1994 order and knew of its effect on the condominiums. Thus, the Council cannot argue that the application of stare decisis is manifestly unjust when it had notice of the previous order. We hold that the circuit court correctly concluded that its decision was governed in this case by stare decisis.
As a final point, this court concludes that the Kessler decision does not have any effect on our decision today. Kessler involved a class-action suit against National Enterprises, as the developer’s successor in interest, for rescission and restitution based on breach of contract and misrepresentation. The class was awarded money damages. The plaintiffs in Kessler acquired their interest in the condominiums before the license agreement for parking and recreational amenities was terminated. In the instant case, the Council does not seek money damages and has no claim for breach of contract or misrepresentation because it had notice that no easement for utility usage existed. Kessler is distinguishable and has no stare decisis effect on the current case.
II. Change in the Law
The Council next maintains that the law has changed since 1994, and, therefore, the 1994 order is not stare decisis. To support this argument, the Council cites to the court of appeals decision, Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997), for the proposition that an implied easement includes access to utilities that are reasonably necessary, even if those utilities are not visible to an adjoining property owner. Glyneu counters that Diener did not change the law with regard to implied easements. Rather, Glyneu asserts that Diener only reaffirmed the settled law that whether an easement is apparent and reasonably necessary are questions of fact for the fact-finder.
Diener involved a dispute between adjacent land owners concerning a septic system. The property was originally owned by one party, and a commercial building with restrooms served by an underground septic system was constructed on the land later purchased by Ratterree. Lateral leach lines extending from the septic system ran under the property later purchased by Diener. The dispute arose when Ratterree opened a restaurant in the commercial building, and the increased usage of the restrooms caused sewage to rise to the surface of Diener’s property.
Diener severed the lateral leach lines, and the parties filed actions against each other. The trial court found that a permanent servitude had been created on Diener’s property. The court of appeals affirmed and ruled that the trial court’s finding that the implied easement was obvious, apparent, and reasonably necessary for Ratterree’s use and enjoyment of the land was not clearly erroneous. The court of appeals stated that apparent use does not necessarily mean actual visible use. See Diener, supra.
The Council relies on Diener for its argument that the law governing implied easements has changed. However, apart from the fact that Diener is a court of appeals decision, it is distinguishable on its facts. Diener purchased his property with at least constructive notice that an implied easement for the septic system existed. He did not inquire as to where the leach lines were located, but he knew that the commercial property adjacent to his land had to be served by a septic system because he was aware that there were no sewer lines in the area. The court of appeals wrote, “whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser . . . .” Id. at 317, 945 S.W.2d at 408 (citing Waller v. Dansby, 145 Ark. 306, 306, 224 S.W. 615, 617 (1920)).
In this case, just the opposite occurred. Both the Council and Glyneu acquired their property with notice of the ruling in the 1994 order that no easement by necessity for utilities existed. The Council moved to intervene in the 1994 suit, albeit in untimely fashion. Thus, it was aware of the 1994 order and had both actual and constructive notice that no easement existed when it purchased the time-share intervals. Glyneu then purchased the hotel in reliance on the fact that no implied easement burdened the property based on the 1994 order. This is a totally different situation from what occurred in Diener, where the purchaser of the servient estate had constructive notice that his property was subject to an easement and the issue was whether he was bound by that notice. We conclude that the law has not changed with respect to the Council. The Diener facts and issues are simply different.
III. Reexamination of the 1994 Order.
For its final point, the Council urges this court to reexamine the 1994 order and give the circuit court directions upon remand. The Council asserts that in 1994, the trial court erred in its ruling pertaining to parking, recreational amenities, and utilities. The Council further contends that the trial court erred in finding that the original parties did not intend to convey permanent rights that ran with the land. The Council claims, in addition, that the trial court did not properly balance the equities of the parties in 1994.
Glyneu, on the other hand, contends that this court should not review the 1994 order because doing so would amount to a mere advisory opinion concerning its merits. Glyneu also maintains that the Council’s argument concerning the fairness of the order was not raised before the circuit court and cannot now be argued on appeal.
It is clear to this court that the Council’s complaint is essentially a collateral attack on the 1994 order. This court has said that:
A direct attack on a judgment is an attempt to amend it, correct, reform it, vacate it, or enjoin its execution in a proceeding instituted for that purpose. Sewell v. Reed, 189 Ark. 50, 71 S.W.2d 191; Woods v. Quarles, 178 Ark. 1158, 13 S.W.2d 617. An attack is direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Brooks v. Baker, 208 Ark. 654, 187 S.W.2d 169; Wilder v. Harris, 205 Ark. 341, 168 S.W.2d 804.
Purser v. Corpus Christi State Nat’l Bank, 256 Ark. 452, 459-60, 508 S.W.2d 549, 553 (1974).
The plaintiffs in the 1994 action failed to timely perfect an appeal and were barred from directly attacking the order. See Lake Hamilton Resort, Inc., 355 Ark. at 584, 142 S.W.3d at 608. Judgments may not be collaterally attacked unless the judgment is void on the face of the record or the issuing court did not have proper jurisdiction. See West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993); Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). This court has said, “[a]bsent allegations of fraud or lack of jurisdiction, a judgment entered by a circuit court bears presump tive verity and may not be questioned by collateral attack.” Powers v. Bryant, 309 Ark. 568, 571, 832 S.W.2d 232, 233 (1992). The Council has not alleged that the 1994 order was void on its face or that it was entered by a court without competent jurisdiction. A collateral attack, accordingly, is prohibited.
Even if this court were to reexamine the 1994 order, the final argument made by the Council was not preserved for appeal. The Council argues that the trial court in 1994 failed to properly and fairly balance the equities of the parties. However, the Council did not make this argument in its original complaint to the circuit court nor during the hearing. This court has said, “[i]t is well settled that this court will not consider arguments raised for the first time on appeal.” Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005). Hence, even if this court were to reexamine the 1994 order, it would not consider the “fairness” argument.
Affirmed.
National Enterprises, Inc. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005). Kesslerfiled a class-action suit against National Enterprises as the developer’s successor in interest, seeking restitution and rescission of purchase contracts based on misrepresentation and breach of contract. The circuit court granted summary judgment for the Kessler Class. National Enterprises appealed, and this court upheld the circuit court’s ruling that National Enterprises was liable to the Kessler Class as a successor in interest, among other things, and remanded on the issue of damages. | [
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Per Curiam;.
Fernando Padilla, a full-time, state-salaried public defender in Pulaski County, was appointed by the trial court to represent appellant, Moses Jones, an indigent defendant, on a charge of rape. Following a trial held on February 24, 2006, appellant was found guilty and sentenced to serve ten years in the Arkansas Department of Correction. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R. App. P. - Crim. 2, and the record has been lodged in this court.
Mr. Padilla now asks to be relieved as counsel for appellant in this criminal appeal, based upon the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Ark. Code Ann. § 16-87-201, et seq. (1998).
Since the court’s decision in Rushing, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[P]ersons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005).
Mr. Padilla’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his mo tion to withdraw as attorney. Ms. Sara Rogers will be substituted as attorney in this matter. The Clerk will establish a briefing schedule.
Glaze, J., not participating. | [
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Robert L. Brown, Justice.
Appellant Michael Roe appeals from a decision by the Sex Offenders Assessment Committee (“SOAC”) regarding risk assessment for registration purposes. We dismiss this appeal for lack of a final order.
On November 26, 2001, the Crawford County Circuit Court entered a judgment and disposition order, which stated that Roe had pled nolo contendere for the crime of pandering or possessing visual or print medium depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated § 5-27-304 (Repl. 2006). The order also stated that Roe’s punishment for that offense was a five-year suspended sentence. The additional terms and conditions of the judgment and disposition included that Roe must register as a sex offender. The order further stated that Roe was to have no contact with anyone under the age of 18 and that he was not to employ anyone under the age of 18.
Roe registered as a sex offender, and he was assessed under the Sex Offender Screening and Risk Assessment procedures adopted by the Department of Correction pursuant to the authority granted to the Department by Arkansas Code Annotated § 12-12-1303(f)(l) (Repl. 2003). Based on the assessment, Roe was placed at level 3, described as “high risk.” The sex-offender fact sheet listed the following four factors as affecting Roe’s risk level:
1. Offender attempted to subvert a fair and accurate assessment.
2. Substantial documentation the offender has committed multiple sex offenses.
3. Offender has same gender victims.
4. Offender’s lack of amenability to treatment.
By letter dated June 5, 2002, Roe requested review of the assessment pursuant to Arkansas Code Annotated § 12-12-1303(f)(2) (Repl. 2003). In his request for review, Roe set forth his objections to each of these factors. In response to Roe’s request for review, Dana Dean Watson, a member of the SOAC, reviewed the findings of the assessment team regarding the level 3 risk classification assigned to Roe and said, in a letter dated May 27, 2003, “[a]fter a very thorough review of the entire case file, I concur with the risk level 3 assessment of Mr. Michael Roe.”
Roe filed a petition for judicial review in the Pulaski County Circuit Court on June 11, 2003, against the Arkansas Department of Correction (“ADC”), the SOAC, and the Sex Offender Screening and Risk Assessment (“SOSRA”) (hereinafter referred to collectively as “appellees”), in which he claimed that he was the subject of a final administrative adjudication. In his petition, Roe alleged that the SOAC and the SOSRA failed to:
a) Follow their own guidelines and procedures in a thorough and objective manner; and
b) Follow their own regulations and/or follow those regulations in a manner consistent with the spirit of the Sex Offender Registration Act.
On January 2, 2004, Roe filed an amended petition for judicial review in which he set forth two counts. Under the first count, Roe alleged that all of the following are contrary to the Arkansas and United States Constitutions: (1) the Sex Offender Registration Act of 1997, codified at Ark. Code Ann. § 12-12-901 through 920 (Repl. 2003 and Supp. 2005); (2) the SOAC, established pursuant to § 12-12-1301 through 1303 (Repl. 2003); (3) the Sex Offender Guidelines and Procedures for Implementing Risk Assessment and Community Notification Regarding Sex Offenders, dated January 2002. Roe also made the following constitutional claims:
(1) depriving individuals classified as offenders of procedural or substantive due process as provided by the Fifth, Sixth and Fourteenth Amendments, U.S. Const.;
(2) depriving individuals of their liberty interest as guaranteed by the Fourteenth Amendment, U.S. Const.;
(3) inflicting cruel and unusual punishment in violation of the Eighth Amendment, U.S. Const.;
(4) constituting denial of due process because the procedures, terms, assessments and regulations relating thereto are so vague that no person can righdy know their meaning and application.
Roe directed his second count toward defendant Larry B. Norris in his official capacity as director of the ADC and John Does 1, 2, and 3. Roe noted that the John Doe defendants were “such other officials as may be responsible for the implementation and enforcement of. . . ‘The Sex and Child Offender Registration Act of 1997.’ ” According to Roe, “[t]he actions of these defendants have been under color of law and constitute state action for the purposes of the state and federal Civil Rights Acts.”
In conclusion, Roe requested that the circuit court declare that the statutes and regulations set forth in his motion violate various constitutional provisions; that the circuit court temporarily restrain, preliminarily and permanently enjoin the enforcement of those statutes and regulations; that the circuit court award attorney’s fees allowed by 42 U.S.C. 1988 and Arkansas statutes; that the circuit court award Roe such general and special damages as may be proved.
On January 2, 2004, Roe also filed a motion for injunctive relief, which he described as a motion for summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure. In his brief in support of his motion for injunctive relief, Roe made two allegations: (1) Roe’s liberty interest entitles him to a due process hearing, and (2) the Arkansas statutes and guidelines are void for vagueness. Roe concluded by requesting that the circuit court grant an injunction forbidding the registration of Roe as a sex offender and the publication of any related information. Additionally, Roe requested that the circuit court declare that the Arkansas sex-offender statutes and regulations are void for vagueness in further violation of the Due Process Clause and thereby enjoin their use.
The circuit court entered an order on May 6, 2005, and made the following rulings:
1. The Court is not ruling on the issue of whether the Petitioner has a liberty interest at stake by his inclusion on the Sex Offender Registry. Even assuming that he does have a liberty interest, due process was afforded to the Petitioner through the negotiated plea, prior notification of the sex offender registration and notification requirements, and an assessment interview for which he was afforded judicial review.
2. The Arkansas Sex and Child Offender Registration Act and Guidelines are not void for vagueness and do not violate due process.
3. The Sex Offenders Assessment Committee and SOSRA failed to follow their own guidelines and procedures in a thorough and objective manner and in the manner consistent with the spirit of the Sex Offender Registration Act. Therefore, the Administrative decision is arbitrary and capricious and an abuse of discretion.
The circuit court reversed and remanded the case for an additional assessment to be made by a different assessor. The court also granted the motion to dismiss on behalf of separate respondent Larry Norris but was silent with respect to any disposition as to John Does 1, 2, and 3.
Rule 54(b) of the Arkansas Rules of Civil Procedure provides in pertinent part:
[A]ny judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b)(2) (2006).
This court is barred from considering this appeal under Rule 54(b) due to the lack of a final order since the claims against John Does 1, 2, and 3 remain viable. Although this issue was not raised by either party, the question of whether an order is final and appealable is a jurisdictional question that this court will raise sua sponte. See Jones v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005) (holding that this court has no jurisdiction to hear a case where the circuit court’s order is not final). This court has specifically held that where John Doe claims have not been determined, dismissal on the basis ofRule 54(b) is appropriate. See, e.g., Jones, supra; see also Moses v. Hanna’s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998). We hold that the order from which Roe appeals is not a final appealable order under Rule 54(b).
Appeal dismissed without prejudice. | [
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Betty C. Dickey, Justice.
Robert L. Kale, M.D., appeals an order of the Sebastian County Circuit Court, finding that there was substantial evidence, in testimony and the record, to substantiate the decision of the Arkansas State Medical Board (the Board) that Dr. Kale was subject to, and violated, Regulation 19 of the Board. On appeal, Dr. Kale argues that (1) the Board’s construction of Regulation 19, making it applicable to Dr. Kale, is inconsistent with the plain language of Regulation 19; and (2) the circuit court erred in awarding certain costs to the Board for copying charges of medical records that were, by agreement of the parties, not part of the record on appeal. Considering the deference given to administrative agencies, this court affirms the first point on appeal. However, we find that the circuit court erred in awarding certain costs to the Board.
Dr. Kale operated a medical practice in Fort Smith, operating under the name “Physician Acupuncture and Medical Pain Management Clinic.” On August 20, 2002, Dr. Kale was charged by the Board with violating Board Regulation 2.4, and an emergency order of suspension of Dr. Kale’s license was issued. The claim against Dr. Kale was amended to include violations of Regulation 2.6 and Regulation 19.
After a hearing, the Board found Dr. Kale guilty of a violation of Regulation 19 and not guilty of a violation of Regulations 2.4. and 2.6. Regulation 19 concerns the operation of pain management programs. Dr. Kale was ordered by the Board to pay the costs of the investigation and to submit to monitoring of his treatment of patients if he operated a pain management program in the future.
Dr. Kale filed a petition for review in the Sebastian County Circuit Court. The circuit court remanded the matter back to the Board while reserving jurisdiction over the appeal pending completion of those further Board proceedings. Upon completion, the court affirmed the action taken by the Board and assessed certain costs against Dr. Kale. Dr. Kale then filed the appeal before us now.
The standard of review regarding administrative decisions is well developed, and we have outlined this standard on numerous occasions. In Arkansas Contractors Licensing Board v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001), we stated:
The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion.
Id. (internal citations omitted).
These standards are consistent with the provisions of the Administrative Procedure Act at Arkansas Code Annotated § 25-15-201 to 25-15-214 (Repl. 2002): [R]eview is limited to ascertaining whether there is substantial evidence to support the agen cy’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 54, 69 S.W.3d 855, 859 — 60 (2002); Ark. Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. at 326, 64 S.W.3d at 244-45. Arkansas Code Annotated § 25-15-212(h) provides that this court may reverse or modify the Board’s decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h). In making this determination, we review the entire record and give the evidence its strongest probative force in favor of the agency’s ruling. Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin, supra. “[BJetween two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced.” Id. (quoting Ark. Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. at 327, 64 S.W.3d at 245).
For his first point on appeal, Dr. Kale does not argue that the Board’s decision was not supported by substantial evidence, only that Regulation 19 is not applicable to Dr. Kale’s treatment of patients because subpart (A) of the regulation states that the regulation applies to “[pjhysicians operating a pain management program for specific syndromes. .. that is headache, low back pain, pain associated with malignancies, or temporomandibular joint dysfunctions . . . .” Dr. Kale contends that the language in subpart (A) limits the scope of the regulation and excludes its applicability in the instant case because Dr. Kale did not treat the specific syndromes listed and did not operate a pain management “program.” In addition, Dr. Kale argues that he did not have fair warning that Regulation 19 applied to his practice and that it is void for vagueness as applied to him. The Board asserts that there was enough evidence, through admissions made by Dr. Kale and the expert testimony of Dr. Warren Boop, to support the Board’s interpretation that the regulation applied to Dr. Kale and that he violated the same.
We start with the long-standing proposition that an agency’s interpretation of its own rules is highly persuasive. Sparks Reg’l Med. Ctr. v. Ark. Dep’t of Human Servs., 290 Ark. 367, 719 S.W.2d 434 (1986). This court may reject an agency’s interpretation of its own rule if the interpretation is irreconcilably contrary to the plain meaning of the rule. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). However, an administrative agency’s interpretation of its own rule will ordinarily be upheld unless it is clearly wrong. Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin, supra.
Regulation 19 of the Arkansas State Medical Board states in pertinent part:
A. Physicians operating a pain management program for specific syndromes... that is headache, low back pain, pain associated with malignancies, or temporomandibular joint dysfunctions ... are expected to meet the standards set forth in this section or in fact be in violation of the Medical Practice Act by exhibiting gross negligence or ignorant malpractice.
B. Definitions:
1. Chronic Pain Syndrome: Any set of verbal and/or nonverbal behaviors that: (1) involves the complaint of enduring pain, (2) differs significantly from a person’s premorbid status, (3) has not responded to previous appropriate medical and/or surgical treatment, and (4) interferes with a person’s physical, psychological and social and/or vocational functioning.
2. Chronic Pain Management Program provides coordinated, goal-oriented, interdisciplinary team services to reduce pain, improving functioning, and decrease the dependence on the health care system of persons with chronic pain syndrome.
Dr. Kale focuses his argument on subpart (A) of Regulation 19, arguing that he did not run a pain management “program,” and that he did not treat the “specific syndromes” listed. The Board argues that Dr. Kale did not consider that subpart (B) provides specifically how the Board defines chronic pain syndrome in regard to pain management, and asserts that the syndromes listed in subpart (A) were included to provide examples. Dr. Kale’s claims do not demonstrate that the Board’s interpretation of the regulation is clearly wrong.
The Board relied in part on the testimony of Dr. Warren Boop. Dr. Boop graduated from the University of Tennessee, completed a neurosurgical residency at the University of Minnesota, served as director of the pain program of the Arkansas Rehabilitation Institute, and had given testimony before the Board in previous hearings regarding the prescribing of pain medication and management and treatment of chronic pain. Dr. Boop opined that anyone who treats chronic pain patients on a regular basis is subject to Regulation 19. While the regulation might have been more clearly interpreted if the words ‘such as’ were used in place of ‘that is,’ we do not find error in the Board’s interpretation of the language as being merely examples.
Furthermore, regardless of which interpretation is considered more accurate, Dr. Boop’s review of Dr. Kale’s patients revealed that several of the patients were, in fact, treated for chronic low back pain. Low back pain was specifically listed in subpart (A) of the regulation. H.H., C.M., and K.V. were all treated specifically for chronic low back pain; R.L. was treated for chronic neck and chronic low back pain; and D.D. was treated for a mild disk degeneration causing low back pain. Dr. Kale testified that he did not recall treating a headache, nor did any of his files that were reviewed deal with malignancies or temporal mandibular joint dysfunctions. However, Dr. Kale stated that several of his patients had low back pain for which he rendered treatment. Furthermore, Dr. Boop found that several of Dr. Kale’s patients had suffered from depression and did not receive referrals or treatment from a psychologist. He opined that failing to use an interdisciplinary approach to pain management was a direct violation of Regulation 19.
While Dr. Kale argues that he did not run what he considered to be a pain management “program,” his letterhead specifically reads “Physician Acupuncture and Medical Pain Management Clinic,” and he admitted that his practice concentrated entirely on pain management. We do not find the Board unreasonable for interpreting the letterhead as advertising a pain management program, regardless of the fact that the word clinic is used in place of program. Dr. Kale also admitted that he did not practice in conjunction with any other physicians, but was a solo practitioner. The Board interprets Regulation 19 to be applied to anyone who treats chronic pain patients on a regular basis. Dr. Kale advertised his business as a pain management clinic and treated several patients complaining of pain, including patients concerned with low back pain. We do not find that the Board’s interpretation of the regulation, or applying it to Dr. Kale, was clearly wrong.
Dr. Kale further argues that, even if the Board was not clearly wrong in its interpretation, he did not have fair warning that Regulation 19 applied to his practice and, therefore, it is void for vagueness as applied to him and violates his right to due process. When challenging the constitutionality of a statute on the grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006); Reinert v. State, 348 Ark. 1, 5, 71 S.W.3d 52, 54 (2002); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). As noted previously, the record reveals that Dr. Kale treated patients for chronic low back pain. Because Dr. Kale treated low back pain, conduct that is specifically proscribed unless a doctor meets the additional requirements set out in the regulation, he lacks standing to raise the argument that the regulation is void for vagueness.
For his second and final point on appeal, Dr. Kale contends that the circuit court erred in awarding costs to the Board for copying charges of certain medical records, pursuant to Arkansas Code Annotated § 25-15-212 (Repl. 2002). Dr. Kale contends that both parties agreed that certain medical records would not be part of the record on appeal and he should not be charged for copying charges of documents that were not a part of the record filed on appeal in the circuit court. We agree.
This point on appeal is a matter of statutory interpretation. We review issues of statutory interpretation de novo. McLane Southern, Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006). Ark. Code Ann. § 25-15-212(d) provides in part:
(2) The cost of the preparation of the record shall be borne by the agency. However, the cost of the record shall be recovered from the appealing party if the agency is the prevailing party.
(3) By stipulation of all parties to the review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs.
While certain medical records were used as part of the evidence when Dr. Kale appeared before the Board, the parties agreed that the medical records would not be filed with the circuit court on appeal. Although there is no evidence in the record as to when the agreement was made, the order of the circuit court indicates that both parties did agree that the medical records were not to be filed as part of the record. The record that the Board filed with the court did not include medical records. However, the Board argued to the circuit court that it had already copied the medical records at the time both parties agreed not to include them in the record on appeal. The circuit court ordered Dr. Kale to pay costs of copying, noting in its order that the agreement between the parties did not extend to “an extra copy.”
Section 25-15-212(d) specifically states that only the cost of the record shall be recovered from the appealing party. There is no indication that the medical records were ever included in the actual record filed on appeal. In fact, pursuant to section 25-15-212(d)(3), had Dr. Kale refused to cooperate and agree to shorten the record, he would have been taxed with the additional cost regardless of the outcome. It would be absurd to still tax Dr. Kale, when the record was shortened by agreement. Therefore, the assessment of costs to Dr. Kale should be reduced in the amount of $3,646.73.
Affirmed in part; reversed in part.
Regulation 2.4 governs prescribing excessive amounts of controlled substances; Regulation 2.6 governs failing to comply with certain requirements in prescribing medicine for more than six months for pain not associated with malignant or terminal illness.
Under Ark. Code Ann. § 5-1-102(20) (Repl.1997), the term “statute” includes the constitution and any statute of this state, any ordinance of a political subdivision of this state, and any rule or regulation lawfully adopted by an agency of this state. | [
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Per Curiam.
Appellant Pamela Terry, by and through her
attorney, has filed a motion for rule on clerk to file her record and have her appeal docketed. The clerk refused to docket the appeal due to a failure to comply with Arkansas Rule of Appellate Procedure — Civil 5(b)(1)(C).
This court has held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006). That rule provides:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rale or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A)The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B)The time to file the record on appeal has not yet expired;
(C)All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D)The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required by its preparation; and
(E)An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
Ark. R. App. P. - Civil 5(b)(1).
On March 2, 2006, the circuit judge entered an order extending the appellant’s deadline to file the transcript to June 14, 2006. The appellant’s attorney admittedly failed to include in the order extending the time to file the transcript that all parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing, as required by Rule 5(b)(1)(C). The record, which was originally due on March 16, 2006, was, in fact, tendered on June 12, 2006. However, because the order granting an extension of time to file the transcript did not comply with Rule 5(b)(1), the clerk considered the record late and refused to docket it.
We have held that “there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality.” Roy, 367 Ark. at 179, 238 S.W.3d at 119; see also White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006). Accordingly, we remand this matter to the circuit court for compliance with Rule 5(b)(1)(C). See White, supra.
Imber, J., concurs. | [
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Per Curiam.
In 1987, Sanders M. Carter was convicted by a jury of rape, aggravated robbery with a deadly weapon and burglary, and was sentenced to life plus forty years’ imprisonment. We affirmed. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). Appellant committed these crimes on November 18,1986. However, the judgment and commitment order listed the date of the offenses as November 18, 1987.
Subsequently, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court denied the petition and this court affirmed. Carter v. State, CR 87-209 (Ark. Oct. 16, 1989) (per curiam). In 1990, appellant filed a petition for writ of habeas corpus. The trial court denied the petition. We dismissed the appeal as having no merit. Carter v. State, CR 90-187 (Ark. Nov. 5, 1990) (per curiam). Next, in 2004, appellant filed a petition for scientific testing pursuant to Act 1780 of 2001. The trial court denied the petition as appellant failed to prove an unbroken chain of custody. This court affirmed. Carter v. State, CR 03-148 (Ark. Feb. 19, 2004) (per curiam).
In 2005, appellant filed another petition for writ of habeas corpus, seeking to set aside his judgment and commitment order. Therein, appellant claimed that he had no formal notice “by the presentment of a felony information or an indictment by grand jury that he was on trial for offenses occuring [sic] on the date November 18, 1987.” Appellant argued that he was being wrongfully imprisoned pursuant to a judgment and commitment order, filed on June 5, 1987, for “criminal offenses that had not yet been consummated by the petitioner[.]” The trial court denied the petition, and appellant, proceeding pro se, has lodged this appeal of that order.
We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
We first note that in the State’s brief to this court, the State cites two unpublished decisions by this court in support of particular propositions. We have long held that “[a]n opinion which qualifies as one not designated for publication is written primarily for the parties and their attorneys .... Once again, we state that nonpublished opinions will not be considered as authority and should not be cited to this court.” Weatherford v. State, 352 Ark. 324, 330-31, 101 S.W.3d 227, 232 (2003), quoting Aaron v. Everett, 6 Ark. App. 424, 644 S.W.2d 301 (1982). (Emphasis ours.)
We continue to adhere to this concept as stated in Weather-ford and Ark. Sup. Ct. R. 5-2. Further, litigants without access to our unpublished opinions, via electronic methods or in-person visits to this court’s library, are placed at a disadvantage when citing authority to this court due to the lack of widespread and complete access to unpublished opinions. However, this court will continue to consider publication of unpublished opinions when requested to do so by motion setting forth good cause why an unpublished opinion should be published.
The principal issue in a habeas corpus proceeding is whether the petitioner is detained without lawful authority. Ark. Code Ann. § 16-112-103 (1987); Fullerton v. McCord, 339 Ark. 45, 2 S.W.3d 775 (1999). A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is illegally detained. Section 16-112-103(a). See also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).
In the instant matter, there is no question but that appellant committed the crimes against the victim in 1986 rather than 1987. The felony information filed by the prosecutor contained the correct date of the crimes. Appellant’s direct appeal and numerous petitions for postconviction relief indicated the correct date. Thus, it is apparent that the judgment and commitment order contained a mere clerical error.
Our case law is replete with examples of a clerical error in a judgment and commitment order. Such clerical errors have not prevented enforcement of the judgment and commitment order. See, e.g., McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999) (appellant owed $30,000 fine omitted from the judgment and commitment order but pronounced in open court). See also Willis v. State, 90 Ark. App. 281, 205 S.W.3d 189 (2005) (sentence proper although judgment and commitment order failed to state all offenses included in revocation of probation as defendant was aware of the State’s intention to include all offenses). Clerical errors also have not prevented other legal documents from effectuating the intended result.
As clerical errors do not speak the truth, courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. See Ark. R. Civ. P. 60(b); McCuen, supra; Willis, supra. Here, appellant was aware at all times that he was being tried for crimes he committed in 1986. He had been put on notice by the State of the correct dates for the crimes and was not prejudiced by his trial for the 1986 crimes. This case presents the exact situation where a clerical error may have been corrected by a nunc pro tunc order. Clerical errors of this type do not entitle appellant to a writ of habeas corpus. See Fullerton, supra.
Appellant’s petition has failed to show that he was being detained without lawful authority. Appellant was not tried for crimes that he had not yet “consummated.” A mere clerical error in the offense dates stated in the judgment and commitment order does not negate the jurisdiction of the trial court as the clerical error does not speak the truth. Appellant failed to prove that the judgment and commitment order was invalid on its face or that the trial court lacked jurisdiction over the cause. Thus, appellant did not establish any cause to conclude that a petition for writ of habeas corpus should issue. We find no error and affirm the decision of the trial court.
Affirmed.
See, e.g., Fullerton, supra (petition for writ of habeas corpus denied where defendant’s incorrect initial in extradition documents did not prevent positive identification of defendant), and Douglass v. Stahl, 71 Ark. 236, 72 S.W 568 (1903) (an incorrect title of an official issuing an arrest warrant did not void the warrant). | [
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Donald L. Corbin, Justice.
Appellant Robert Shelton appeals the White County Circuit Court’s order granting summary judgment in favor of Appellees Harold K. Keathley, a/k/a Kelton Keathley, and the Unknown Heirs of Harold E. Keathley (collectively known as “Kelton”). On appeal, Shelton raises three points for reversal: the trial court erred in (1) holding that Ark. Code Ann. § 28~9-209(d) (Repl. 2004) was applicable and controlled the present case; (2) granting summary judgment because genuine issues of fact exist on the counts filed against Kelton that are unrelated to a claim against the estate; and (3) finding that Kelton had no duty to inform Shelton of Harold E. Keathley’s death. Because this case involves issues needing clarification of the law, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(b)(5). We find no error and affirm.
This is a probate matter arising after the December 22,1993, death of Harold E. Keathley (the decedent). At the date of his death, a valid will existed; however, it was not probated nor was an estate opened. On January 24, 2005, Shelton filed a petition for determination of heirship and a complaint for constructive trust and constructive fraud against Kelton. In this suit, Shelton maintained that he was the illegitimate child of the decedent. Kelton answered the complaint and filed a motion for summary judgment asserting that, pursuant to section 28-9-209 (d), the statute of limitations had expired as to Shelton’s claim.
On May 18, 2005, Shelton filed his first amended and substituted petition and complaint. In response, Kelton filed a second motion for summary judgment. On July 7, 2005, Shelton filed his second amended and substituted petition. The next day the trial court denied Kelton’s motion for summary judgment, finding that section 28-9-209 did not apply because there was no prior probate of the decedent’s estate, and there is not a statute of limitations on a determination of heirship until there is an event that would affect an heir’s pecuniary interests.
On January 12, 2006, Kelton filed a motion for reconsideration. In this motion, he argued that he was entitled to reconsideration of the July 8 order denying his motion for summary judgment based on this court’s application of section 28-9-209(d) and its holding in Burns v. Estate of Noel Cole, 364 Ark. 280, 219 S.W.3d 134 (2005). On February 14, 2006, after reviewing Kelton’s motion for reconsideration and Burns, the trial court granted summary judgment and dismissed Shelton’s petition and amended petitions. This order found that section 28-9-209(d) was applicable and controlling. Furthermore, the court found that Shelton failed to file or assert a claim within 180 days from the decedent’s death or within 180 days of his discovery of the decedent’s death and Shelton’s possible relation. The court also found that there was no compliance with any of the six conditions of section 28-9-209(d) and that Kelton did not have a duty to inform Shelton of the decedent’s death. This appeal followed.
Shelton’s first argument on appeal is that the trial court erred in holding that section 28-9-209(d) was applicable and controlling in this case. Specifically, Shelton argues that the lawsuit was brought against Kelton, pursuant to Ark. Code Ann. § 28-39-407(b) (Repl. 2004), in Shelton’s capacity as a pretermitted child. Moreover, Shelton asserts that because no claim was ever made against the decedent’s estate, section 28-9-209(d) does not apply; therefore, he was not required to comply with the 180-day time limitation. On the other hand, Kelton argues that the trial court did not err because, essentially, Shelton is seeking to recover a portion of the estate’s property held by Kelton. Thus, he asserts, the issue is nothing more than an application of the statutes to determine if the trial court properly relied upon section 28-9-209(d) in granting the motion for summary judgment and dismissing Shelton’s case.
We review probate proceedings de novo and we will not reverse the decision of the probate court unless it is clearly erroneous. Burns, 364 Ark. 280, 219 S.W.3d 134. Similarly, we review issues of statutory construction de novo as it is for this court to decide what a statute means. Id. We will not reverse absent the showing that the trial court erred in its interpretation. Id. In the present case, we are also called upon to review an entry of summary judgment based upon the trial court’s application of section 28-9-209 (d). The standard of review when summary judgment has been granted is well settled:
[S]ummary 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. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005); Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006).
As stated above, Shelton argues that because he sought to recover assets from Kelton as a pretermitted child, pursuant to section 28-39-407(b), he cannot be subjected to the 180-day limitation of section 28-9-209(d). This argument is without merit.
Section 28-39-407(b) states, in relevant part:
Pretermittted Children. If, at the time of the execution of a will, there is a living child of the testator ... whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or she or they would have inherited had there been no will.
Pursuant to Ark. Code Ann. § 28-l-102(a)(l) (Repl. 2004), the term “child,” as used in the Probate Code, means “a natural or adopted child, but does not include ... an illegitimate child except such as would inherit under the law of descent and distribution[.]” (Emphasis added.) In reading section 28-l-102(a)(l) in conjunction with section 28-39-407(b), it is clear that an illegitimate, pretermitted child is only able to inherit as he would under the law of descent and distribution. Section 28-9-209(d) governs an illegitimate child’s ability to inherit from his or her father and provides, in relevant part:
An illegitimate child ... may inherit real or personal property from his or her father or from his or her father’s blood kindred, provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man’s name appears with his written consent on the birth certificate as the father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or
(6) The putative father is obhgated to support the child under a written voluntary promise or by court order.
Reading these statutes for their plain meaning, and in conjunction with one another, it is clear that in order for an illegitimate child to pursue a claim under the pretermitted child statute, he must also meet the requirements of section 28-9-209(d).
In the present case, Shelton filed suit against Kelton alleging, in part, that he was entitled as a pretermitted child to an intestate share of the decedent’s estate. Kelton responded that Shelton’s suit was controlled by section 28-9-209 (d) and, thus, time barred. The trial court agreed with Kelton and granted summary judgment after finding that section 28-9-209(d) was applicable and controlling in this case. This finding was not in error. It is undisputed that Shelton did not fulfill any of the six requirements under section 28-9-209(d); he was not recognized by the decedent as a child nor has he been legally recognized as the decedent’s child by a court of competent jurisdiction. Moreover, Shelton did not file an action within 180 days of the decedent’s death.
Because section 28-9-209(d) governs the law of descent and distribution, as it applies to pretermitted children who are also illegitimate, it is unnecessary to examine Shelton’s argument that his claims were not against the estate. The trial court did not err in applying section 28-9-209(d) and finding that Shelton failed to comply with either the 180-day time limit or any of the six conditions. Because this case also involves a grant of summary judgment, it is still necessary to examine Shelton’s arguments that material issues of fact remain.
For his second point of appeal, Shelton argues that the trial court erred in granting summary judgment as genuine issues of fact exist on the counts filed against Kelton that are unrelated to a claim against the estate. Shelton asserts that the trial court’s ruling ignores the following four counts of his complaint: (1) Count II — Constructive Trust; (2) Count III — Constructive Fraud; (3) Count IV, which sought to recover a share of the estate from Kelton pursuant to the pretermitted child statute, section 28-39-407(b); (4) Count V — Partition of Real Estate. Moreover, Shelton argues that none of the factual findings relevant to the above claims have been addressed in the trial court’s order, thus leaving open genuine issues of material fact. Shelton’s argument is without merit because, as he correctly states in his brief, the “court’s order totally disregarded each of these claims [.]” Because there is no specific ruling by the trial court for this court to review, this court will not consider these issues. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006).
Additionally, even if Shelton’s arguments had been preserved, we would not address these claims because they all rely on the assumption that he is the decedent’s heir. As stated above, Shelton has never been recognized as the decedent’s legitimate son. As such, the trial court did not err in granting summary judgment because no genuine issues of material fact remain.
Shelton’s final argument is that the trial court erred in finding that Kelton did not have a duty to inform him of the decedent’s death. Similar to his previous arguments, this argument stems from his assumption that he is an heir. Specifically, Shelton claims that he was an heir that should have been recognized, his existence was known by Kelton, and that Kelton, as executor of the will, had a fiduciary duty to all beneficiaries, including Shelton. As proposed by Shelton, these duties included the duty to deliver the decedent’s will to probate, the duty to give notice to all interested parties, and the duty to safeguard the assets of the estate for all interested parties. As stated above, this court reviews probate proceedings de novo, and it will not reverse the decision of the probate court unless it is clearly erroneous. Burns, 364 Ark. 280, 219 S.W.3d 134. Upon review, we cannot say the court erred in finding that Kelton did not owe a duty to inform Shelton of the decedent’s death.
First, Shelton argues that at the death of the testator, the law requires the person having custody of the will to deliver it to the proper court. See Ark. Code Ann. § 28-40-105 (Repl. 2004). While this is true in part, Shelton ignores the entirety of that provision, which states: “[a]fter the death of a testator, the person having custody of his or her will shall deliver it to the court which has jurisdiction of the estate or to the executor named in the will.” Ark. Code Ann. § 28-40-105(a) (emphasis added). Therefore, Kelton did not have a duty to deliver the will to the court because he was the named executor in the will.
Second, an interested party may petition the court for the admission of the will to probate, whether or not that will is in his possession. Ark. Code Ann. § 28-40-107 (Repl. 2004). In his argument, it seems as though Shelton believes that this transfers to the executor a duty of notices of publication and a duty to safeguard the assets for all interested parties. As pointed out above, Shelton has never been declared a legitimate heir and, consequently, he does not qualify as an interested person within the Probate Code. Moreover, he does not cite to any specific provision of the Probate Code nor any case law that supports his argument. We will not consider arguments, like this, that are not supported by citation to legal authority or by convincing argument. Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005).
Lastly, Shelton argues that the court’s finding was incorrect because an executor of a decedent’s estate occupies a fiduciary position and must exercise the utmost good faith in all transactions affecting the estate. See Warren v. Tuminello, 49 Ark. App. 126, 898 S.W.2d 60 (1995). This argument ignores the fact that the will was not probated, an estate was not opened, and, consequently, Kelton was never appointed by the court to the position of executor thus triggering a fiduciary duty. As such, this latter assertion is also without merit. Therefore, the trial court did not err in finding that Kelton did not have a duty to inform Shelton of the decedent’s estate.
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Robert L. Brown, Justice.
Appellant, J. T. Talbert, Jr., appeals his judgment of conviction for two counts of sexual assault in the third degree and two sentences of twenty years, to run consecutively. He raises multiple points on appeal. We hold that the points have no merit, and we affirm.
Talbert operates Advantage Plus Employment Agency and is also the minister of New Birth Ministries. During the time the State contends that the events in this case took place, both the employment agency and the church were located in the same building in North Little Rock. At trial, one of the victims, Betty Teague, testified that in 2003, she responded to a newspaper ad for Talbert’s employment agency. This is where she first met Talbert, and he invited her and others to return to his church for a sermon. Ms. Teague attended the church for the sermon, after which Talbert prayed with her. Following that day, they spoke on the telephone frequently, and Talbert continued to invite Ms. Teague to church. Ms. Teague testified that she confided in Talbert about problems in her life. She also testified that she looked up to Talbert as a preacher and thought of him as someone she could turn to for help. It was during this period, she said, that he sexually assaulted her.
The second victim, Dominique Murphy, testified that she attended New Birth Ministries and worked at the church as a secretary. She testified that one day during the summer of 2002, Talbert called her into his office at the church during lunch and sexually assaulted her. A second incident occurred later that summer when Talbert took her to a motel where he again assaulted her. Ms. Murphy testified that she was afraid to resist on both occasions. She testified that during this time, she saw Talbert as a father figure and looked up to him as a preacher.
Following trial, the jury convicted Talbert of sexual assault in the third degree of both counts involving Ms. Teague and Ms. Murphy under Arkansas Code Annotated § 5-14-126(a)(l)(B) (Repl. 2006), which prohibits a member of the clergy from using his position of trust and authority to engage in sexual activity with a victim. He was sentenced to a total of forty years.
I. Preservation
We first address the State’s claim that Talbert’s constitutional arguments are not preserved for appeal due to lack of specific rulings by the circuit court. To preserve an issue for appeal, an appellant must raise the issue and make an argument at trial. See, e.g., Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). Furthermore, an appellant must obtain a ruling on the issue in order to preserve it for appellate review. See id. This court has stated that the circuit court must have the benefit of the development of the law by the parties in order to rule adequately on the issues. See id. Because Talbert did not obtain specific rulings from the circuit court on each of his six constitutional challenges below, the State maintains that he should not be able to assert them on appeal. We disagree.
On July 13, 2005, before trial, Talbert moved to dismiss the charges against him based on six asserted constitutional challenges to § 5-14-126(a)(l)(B) and filed a briefin support of the motion in which he argued each challenge. The State responded to all six challenges. On August 5, 2005, the circuit court denied the motion by a docket entry, which read that the motion was “denied as untimely and on the merits.” At trial, Talbert renewed his motion to dismiss in light of trial testimony, in addition to his motion for directed verdict, both at the end of the prosecutor’s case and at the end of all the evidence. Both renewed motions were denied by the circuit court.
We decline to affirm this matter due to lack of preservation. Specifically, we disagree with the State that this case is governed by our decision in Raymond v. State, supra. In Raymond, supra, the appellant did not mention the argument made on appeal in his motion to dismiss before the circuit court or in his argument to the circuit court during trial. Instead, he made only general constitutional arguments before the circuit court. We said in that case that a “general objection by a party who cites to constitutional provisions was not sufficient to preserve constitutional questions presented on appeal.” Raymond, 354 Ark. at 165, 118 S.W.3d at 572.
Similarly, in Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997), the appellant argued that the incriminating statements she made should have been suppressed because she had not knowingly and intelligently waived her constitutional rights. The circuit court ruled that the waiver was voluntary but did not rule on whether it was knowingly and intelligently made. See id. Because voluntariness is a separate issue from a knowing and intelligent waiver, this court stated that her issue was not properly preserved on appeal. See id.
Both Raymond, supra, and Wofford, supra, can be readily distinguished from the current case in that neither of the appellants in those cases argued the specific issue before the circuit court that they later argued on appeal. In the instant case, Talbert did argue all six constitutional challenges before the circuit court, the State responded to all six challenges, and the circuit court denied his motion to dismiss as failing on the merits three separate times. We conclude that the constitutional issues were fully developed before the circuit court and that the circuit court was fully apprised of the issues. It is true that the circuit court denied the challenges in a single ruling all three times, but under these facts, we see no necessity for six separate rulings. Accordingly, we hold that Talbert’s constitutional challenges are reviewable by this court.
II. Sufficiency of the Evidence
Talbert first argues that there was insufficient evidence to sustain his conviction for third-degree sexual assault. We consider sufficiency questions first due to double-jeopardy implications. See, e.g., Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). At trial, Talbert moved for a directed verdict, both after the State’s case and at the close of all evidence as required. He argues that the State’s evidence proves nothing more than a consensual sexual relationship with both Ms. Teague and Ms. Murphy. He contends that there was no evidence that he, as the minister of New Birth Ministries, was in a position of trust or authority over either victim or that he used that position to engage in a sexual relationship with either.
In reviewing a challenge to the sufficiency of the evidence by a defendant, an appellate court is to view the evidence in the light most favorable to the State. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Only the evidence that supports the conviction should be considered. See id. A conviction will be affirmed if there is substantial evidence to support it. See id. Substantial evidence is evidence of sufficient force and character that with reasonable certainty compels a conclusion one way or the other without resorting to speculation or conjecture. See id. This court has held that a victim’s uncorroborated testimony is sufficient to support a conviction. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).
The third-degree sexual assault statute reads:
(a) A person commits sexual assault in the third degree if the person:
(1) Engages in sexual intercourse or deviate sexual activity with another person who is not the actor’s spouse, and the actor is:
(B) A professional under § 12-12-507(b) or a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity.
The State presented the testimony of Ms. Teague and Ms. Murphy to prove that Talbert did in fact use his position of trust and authority over these victims to engage in sexual activity with them. Ms. Teague testified that she met Talbert after applying for a job through his employment agency. She attended his church once after receiving an invitation from him, and later talked to Talbert frequently on the telephone. He continued to invite her to church, and she confided in him about her alcohol problems and sexual preference. The incident in question occurred after Ms. Teague contacted Talbert regarding problems she was having with her automobile. He came to her home, she thought to help her, but instead he requested oral sex and sexual intercourse. She testified that she looked up to Talbert as a preacher and as someone she could turn to for help. Though Talbert at first denied that a sexual relationship ever occurred between Ms. Teague and him, DNA evidence proved otherwise, as semen found on Ms. Teague’s bedding matched Talbert’s DNA.
When viewed in the light most favorable to the State, Ms. Teague’s testimony, corroborated by DNA evidence, is substantial evidence to prove that Talbert did in fact have sexual relations with Ms. Teague and that he abused his position of trust and authority over her to do so.
Ms. Murphy’s testimony also amounts to sufficient evidence to convict Talbert. She testified that she was a member of New Birth Ministries and that she worked at the church as a secretary. He sexually assaulted her on two separate occasions. The first assault took place in Talbert’s office one day during lunch. He called her into his office and asked her to perform oral sex on him. She testified that she agreed because she was afraid he would rape her if she resisted. The second incident took place at a motel. Talbert offered to drive Ms. Murphy to an appointment at a local State Department of Human Services office hut instead drove her to a motel and had oral sex and sexual intercourse with her. She testified that she was afraid of what he might do if she refused. Ms. Murphy testified that Talbert was a father figure to her and she viewed him as her preacher. Ms. Murphy’s testimony is substantial evidence that Talbert was able to take advantage of her because of his position of trust and authority over her.
Talbert argues that this testimony shows nothing more than a consensual sexual relationship. He argues that the only thing the evidence proves is that Talbert asked for sex and Ms. Teague and Ms. Murphy agreed. He asserts that neither victim testified that they put up a fight and that neither stated they were threatened by Talbert in any way. But our review of whether a crime was committed does not end with the fact that Talbert had sex with the two victims. Both victims testified that they looked up to Talbert as a preacher and trusted him. Ms. Murphy testified that she was afraid of what might happen to her if she did not comply with his sexual requests. She further testified that she was not attracted to him. Ms. Teague stated that she told Talbert regarding sex, “No, you’re a preacher. It’s not proper. It’s not right.” This testimony does not indicate a consensual relationship. It indicates that Talbert, as a minister, used his position of trust and authority over these two victims to engage in unwanted sexual activity with them. The evidence was sufficient to sustain Talbert’s conviction for third-degree sexual assault.
III. Constitutional Issues
Talbert next argues that § 5-14-126(a)(l)(B) violates various rights vested in him under the United States and Arkansas Constitutions. In reviewing the constitutional challenges, this court has held that a statute is presumed constitutional and all doubts are resolved in favor of constitutionality. The party challenging the statute has the burden to prove otherwise. See, e.g., Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004).
a. Substantive Due Process
Talbert argues that after Lawrence v. Texas, 539 U. S. 558 (2003), a state cannot intrude into an individual’s right to engage in private, consensual sex with other adults. While Lawrence, supra, does stand for this proposition, the acts criminalized by the Texas statute in Lawrence are distinguishable from the acts criminalized by § 5-14-126. In Lawrence, supra, the Texas statute had criminalized consensual sexual acts. In the instant case, Talbert was not being prosecuted for consensual sexual acts with Ms. Teague and Ms. Murphy. Rather, he was being prosecuted for using his position of trust and authority over those individuals to engage in those acts. Substantive due process, including his right to engage in private, consensual sex, protects an individual’s liberty interest under the United States Constitution (Lawrence, supra), but Talbert has no liberty interest to engage in sexual activity by abusing his position of trust and authority. His substantive due process rights simply were not violated in this instance.
b. Equal Protection
Talbert next argues that § 5-14-126(a)(l)(B) violates his rights under the Equal Protection Clause of the United States Constitution. He contends that the statute constitutes class-based legislation that singles out ministers and prohibits them from engaging in consensual sex with other adults. Once again, Talbert misconstrues the statute as one that prohibits purely consensual conduct. As previously discussed, he was not prosecuted for purely consensual acts but rather for using his position of trust and authority to engage in sexual activity. Moreover, other professions are referenced in § 5-14-126, as already footnoted in this opinion.
In order to prove that the classification in § 5-14-126 violates the Equal Protection Clause, the appellant must demonstrate that there is no rational basis for the classification. Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005). Under the rational basis test, the party challenging the constitutionality of the statute must prove that the statute is not rationally related to “achieving any legitimate governmental objective under any reasonably conceivable fact situation.” See id. Members of the clergy are highly respected and trusted by most people. People specifically seek out their ministers and clergyman when they are especially vulnerable and in time of need. Because the clergy is held in such a high regard, there is a legitimate reason for the State to criminalize a clergyman’s abuse of this trust and authority to procure sex.
c. Privacy Rights Under Arkansas Constitution
Talbert next claims that § 5-14-126(a)(l)(B) violates his privacy rights under the Arkansas Constitution. He cites Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), for the proposition that a fundamental right to privacy is implicit in the Arkansas Constitution. Because the right to privacy is a fundamental right, he contends that the constitutionality of a statute that infringes upon that right must be examined under strict scrutiny and is unconstitutional unless “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.” See id. at 632, 80 S.W.3d at 350 (quoting Thompson v. Arkansas Social Services, 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984)).
Talbert is correct that we held in Jegley, supra, that there is a fundamental right to privacy implied in the Arkansas Declaration of Rights of the Arkansas Constitution. We disagree, however, that his right to privacy has been violated. To repeat, the statute in question does not infringe upon Talbert’s fundamental right to have private, consensual sex. The conduct criminalized by the statute is the use of trust and authority as a minister over individuals to engage in unwanted sexual activity with them. Thus, Jegley, supra, is distinguishable from the case at hand in that the conduct criminalized in Jegley was purely consensual, whereas the conduct criminalized here is not.
d. Equal Rights Amendment
Talbert also contends that § 5-14-126(a)(l)(B) violates the Arkansas Equal Rights Amendment to the Arkansas Constitution. The analysis under our Equal Rights Amendment is the same as that under the Equal Protection Clause of the United States Constitution. The party challenging a statute must prove that the statute lacks a rational relationship to a legitimate legislative purpose. See,Jegley, supra. As discussed above, because members of the clergy are held in high esteem, the statute in question is rationally related to preventing clergymen from using their position of trust and authority to engage in unwanted sexual activity with their victims.
e. Vagueness
Next, Talbert maintains that the statute did not give him fair notice of what conduct is prohibited and, therefore, is unconstitutionally vague. A law is unconstitutionally vague if it does not give a person of ordinary intelligence fair notice of what conduct is prohibited. Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). There must be ascertainable standards of guilt in a statute so that a person of average intelligence does not have to guess at its meaning. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). To challenge a statute on grounds of vagueness successfully, the party must be one of the “ ‘entrapped innocent,’ who has not received fair warning.” Reinert, 348 Ark. at 5, 71 S.W.3d at 54 (citing Ross v. State, 347 Ark. 334, 336, 64 S.W.3d 272, 273 (2002)). If a person’s conduct clearly falls within what is prohibited, that person cannot complain that the statute is vague. See id. Talbert urges that the statute in question is vague because it does not define “a position of trust or authority” or when one “uses his position to engage in . .. sexual activity.” He states that the statute could make it a crime for him to have a sexual relationship with anyone.
Again, we disagree. After reading the language of the statute, a person of ordinary intelligence would not believe that it is a crime, perse, for a member of the clergy to have a consensual sexual relationship with someone. The statute makes it clear that a clergyman must have used his position of trust and authority to engage in the sexual relationship. Although, conceivably, it may be unclear in some situations whether an individual is in a position of trust and authority over others, in this case it was clear. Ms. Murphy worked as a secretary in Talbert’s church and regularly attended his church services. Ms. Teague once attended Talbert’s church, and he later ministered to her regarding problems in her life. Both victims testified that they thought of Talbert as a preacher and someone they could turn to for help.
We conclude that Talbert’s conduct clearly fell within the proscription set forth in § 5-14-126(a)(l)(B), and, therefore, he cannot complain that the statute is unconstitutionally vague. We further conclude that a person of ordinary intelligence would have known that he was in a position of trust and authority over both Ms. Murphy and Ms. Teague, and that he abused that position in order to take advantage of them. In his brief, Talbert gives several speculative situations where the statute might be applied to restrict sexual relationships that it should not constitutionally be able to restrict. This court, however, has stated that if a statute clearly applies to the conduct of the party challenging the statute, the fact that the statute may be questionable in its application to speculative situations is immaterial. See Reinert, supra. Furthermore, a statute “will not be struck down as vague only because there could be marginal cases where doubts might arise.” Booker, 335 Ark. at 326, 984 S.W.2d at 21-22. Though there may be some circumstances under which the statute could be unconstitutionally applied, that is not the case here. The statute does not fail for vagueness.
f. Freedom of Association
As a final point, Talbert asserts that the statute violates his right to freedom of association under the First Amendment to the United States Constitution. In his brief on appeal, however, he merely quotes the Supremacy Clause in the United States Constitution and then states that the right to freedom of association is contained within the First Amendment. He cites no authority and makes no argument as to how his freedom of association has been impaired. This court has repeatedly held that it will not consider an argument, even a constitutional one, if the appellant makes no convincing argument or cites no authority to support it, and it is not apparent without further research that the appellant’s argument is well taken. See, e.g., Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002). In his brief, Talbert makes only a mere conclusion that his freedom of association rights have been infringed. Accordingly, the issue is not preserved for our review.
IV Statute of Limitations
Talbert contends that the charges relating to Ms. Murphy should have been dismissed by the circuit court because the three-year statute of limitations for third-degree sexual assault expired before the felony information in this case was filed. See Ark. Code Ann. § 5-l-109(b)(2) (Repl. 2006). To support his argument, he refers to testimony that Ms. Murphy left the church in 2001. The felony information was not filed until November 2004. Therefore, he argues that anything that did happen between Ms. Murphy and him happened in 2001, and the statute of limitations bars prosecution with respect to these charges.
In a criminal prosecution, the State must prove beyond a reasonable doubt that the statute of limitations has not expired. See Ark. Code Ann. § 5-l-lll(a)(4). When a statute-of-limitations issue is reviewed on appeal, the appellate court view's the evidence in the light most favorable to the state. See Hunter v. State, 330 Ark. 198, 952 S.W.2d 145 (1997).
Talbert filed a motion for a directed verdict at trial and argued that the statute of limitations barred his prosecution for the charges against him regarding Ms. Murphy. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Robinson v. State, 363 Ark. 432, 214 S.W.3d 840 (2005). As already stated, in reviewing these motions, the appellate court must determine whether the verdict is supported by substantial evidence. See id.
At trial, Ms. Murphy testified that the assault happened while she was working for the church during the summer of 2002. Three witnesses testified for the defense that Ms. Murphy joined the church in 2001 and left later that same year. The defense introduced into evidence the church roll from 2001, without objection from the State, which stated that Ms. Murphy joined the church in September 2001. Thus, Talbert argues that this evidence proves that any incident that occurred between Ms. Murphy and him occurred in 2001, and that the statute of limitations barred those charges from being brought against him.
As already noted, a victim’s testimony alone is substantial evidence to support a conviction. See Arnett, supra. Although there was conflicting testimony at trial, there was sufficient evidence that the felony information was filed within the applicable statute of limitations. On appeal, this court cannot weigh the credibility of witnesses. Our sole inquiry is whether there was substantial evidence to find that the crime occurred in 2002. The only evidence that this court may consider is that which supports the circuit judge’s decision. See Robinson, supra. In viewing this evidence in the light most favorable to the State, there is sufficient evidence that the crime occurred in 2002, which means the felony information was filed within the applicable limitations period. We affirm on this point.
Affirmed.
Twenty-eight other professions are listed under this statute, including child-care workers, dentists,judges, law-enforcement officials, medical personnel, teachers, and prosecuting attorneys.
The three witnesses who testified for the defense were Kimberly Davis, Katherine Merrit, and PhyllisTalbert. Kimberly Davis testified that the church location was moved from its address at Second Street and Hemlock to its new location on Broadway in North Little Rock in March 2002. | [
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Annabelle Clinton Imber, Justice.
This case concerns the notice requirements of the Teacher Fair Dismissal Act (TFDA), as amended in 1999 and 2001. See Ark. Code Ann. § 6-17-1501 et seq. (Repl. 1999 & Supp. 2005). Pursuant to the 2001 amendments, when a school district sends a teacher notice that it will not renew the teacher’s contract, the written notice must include “a statement of the reasons for the recommendation, setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense.” Ark. Code Ann. § 6-17-1506(b)(2)(B) (Repl. 1999)(emphasis added). Unless the school district substantially complies with both the requirements set forth in the TFDA and in the district’s personnel policies, the attempt at nonrenewal shall be void. Ark. Code Ann. § 6-17-1504 (Supp. 2005).
Appellant Watson Chapel School District (“the School District”) hired Appellee Bernice Martin Russell for the position of Special Education Supervisor during the 2000-2001 school year and renewed her contract for the 2001-2002 school year. However, on April 4, 2002, Charles Knight, Superintendent of the district, sent Russell notice that he would recommend to the school board that her contract not be renewed for the 2002-2003 school year. Knight’s suggestion of nonrenewal was made at the behest of Russell’s direct supervisors Brenda Melton, Curriculum Director, and Ivy Lincoln, Assistant Superintendent.
The initial notice that Russell received stated the following reasons for nonrenewal of her contract:
1. You have responded evasively to questions from administrators, rather than clearly and honestly.
2. You have argued with administrators, rather than cooperate with their attempts to work with you.
3. You have neglected your duty by fading to improve your professional conduct as requested by administrators, even though administrators have attempted to assist you through discussions, memos, reprimands, evaluations, and individual improvement plans.
4. Your conduct materially interferes with your continued performance of the duties ofSpecial Education Supervisor because success in this difficult position requires a person to behave in a cooperative, reliable, and diplomatic manner.
The notice also stated that if Russell resigned by April 15, Knight would recommend that the school board employ her as a special education teacher the following year. Knight renewed the offer on May 1.
Russell concluded that the April 4 letter was insufficient to assist her in preparing a defense, and she wrote to Knight on April 12 requesting clarifying information. She, specifically requested information regarding which events, dates and administrators the charges involved. Knight replied on April 17, stating that Russell already possessed “all the information requested” because it was in her personnel file. Knight also indicated that he would rely on testimony from Lincoln, Melton, and himself to support his recommendation to the school board.
On April 24, Russell sent Knight another letter; in the letter, Russell listed three incidents that she expected to be the basis for the charges and asked Knight to confirm that no other incidents were at issue. Knight responded on May 2, stating that Russell’s assumptions were incorrect and reiterating that Russell had all the information she needed in her possession. Meanwhile, Russell requested a hearing before the school board.
At the hearing, the School District presented exhibits consisting of Russell’s performance evaluations for both years she was employed by the School District and correspondence between Russell, her supervisors, and other faculty. Melton and Lincoln gave testimony explaining how each exhibit demonstrated the particular charges being asserted against Russell. While the School District did submit evidence regarding two of the three incidents Russell inquired about in her April 12 letter, the School District also presented evidence of nine other incidents. In preparation for her defense, Russell had examined and compiled all of the documents that the School District presented along with documents concerning several other incidents.
At the conclusion of the hearing, the school board voted not to renew Russell’s contract and adopted, verbatim, the reasons in Knight’s original April 4 notice as its findings of fact. Thereafter, Russell filed an action in the Jefferson County Circuit Court alleging that the school board’s action was void because the School District failed to comply with the TFDA when it sent her the notice of nonrenewal. Russell further alleged that because the school board’s action was void, her contract was automatically renewed for both the 2002-2003 and 2003-2004 school years. Russell claimed relief in the form of contract damages, reinstatement, and attorney’s fees.
At the bench trial on August 22, 2005, Russell testified that she had difficulty preparing for the school-board hearing because of the lack of specificity in the notice of nonrenewal, stating “I did not know exactly what I was defending myself against... I simply made copies of everything that I could think of in the hope that I was going to have what I needed.” Russell also pointed out that she spent a great amount of time preparing her defense to documents that the School District did not use at the hearing. On cross-examination, Russell testified that she examined all of the documents presented by the School District prior to the hearing and was prepared to defend against all of the issues raised at the hearing.
The circuit court ruled that the notice was insufficient under the TFDA, adding that the School District did not “even attempt to comply with the [c]ode provisions.” The School District urged the court to examine the transcript of the school-board hearing before it made its ruling, but the circuit court refused to do so before ruling on Russell’s claim under the TFDA. The circuit court found the school board’s nonrenewal action void and awarded Russell $77,137 in contract damages. On appeal, the School District presents three arguments: (1) the School District’s nonrenewal notice did substantially comply with the TFDA as amended; (2) if the notice was not in compliance, Russell was not prejudiced by the noncompliance; and (3) the trial court incorrectly calculated Russell’s damages in light of our law on mitigation of damages. The School District asks this court to interpret the notice requirements of the TFDA as amended in 2001.
The first step in our analysis of this case is to determine whether the School District substantially complied with the TFDA when it sent Russell the notice of nonrenewal. We conclude that in order for a reviewing court to make such a determination, it must examine not only the notice of nonrenewal, but also any record of the school-board hearing made pursuant to the TFDA. See Ark. Code Ann. § 6-17-1509(c)(4) (Supp. 2005). More specifically, a review of the testimony and exhibits presented by both sides at a school-board hearing is necessary to determine whether a school district’s written notice was sufficient to enable a reasonable teacher to prepare a defense. Ark. Code Ann. § 6-17-1506(b)(2)(B).
In determining the sufficiency of the notice, a circuit court should examine a school district’s notice within the context of what actually occurred during the school-board hearing. Furthermore, when a record of the hearing has been made pursuant to Ark. CodeAnn.§ 6-17-1509(c)(4), a circuit court must review the notice in conjunction with the hearing transcript and compare the evidence the school district presented to support the charges against the teacher with the actual defense that he or she was able to present as a counter to that evidence. To do otherwise, would undermine the clear intent of the General Assembly that a notice will be deemed sufficient if a “reasonable teacher can prepare a defense.”
This approach coincides with our cases in which we applied the “substantial compliance standard” under past versions of the TFDA. Under our previous standard, “ [substantial compliance with the notice requirement [was] sufficient, absent a showing that prejudice resulted from a want of strict compliance.” Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983). Thus, a court not only had to determine whether a notice was in substantial compliance with the TFDA’s notice requirements, but the court also had to look at the notice in the context of whether it had a prejudicial effect on the teacher’s ability to defend her position before the school board. See Fullerton v. Southside School Dist., 272 Ark. 288, 613 S.W.2d 827 (1981).
In Maxwell v. Southside School District, 273 Ark. 89, 618 S.W.2d 148 (1981), we held that neither the circuit court nor this court can review a school board’s action when the record is completely silent about the evidence considered by the board. Id. While the school board in the Maxwell case acted upon evidence not disclosed to the circuit court, the circuit judge in the instant case had access to the evidence presented at the school-board hearing. Yet, the judge declined to consider that information before ruling on the merits ofRussell’s claim under the TFDA. We must therefore conclude that the circuit court erred when it made its ruling on the sufficiency of the notice of nonrenewal without first examining the transcript of the school-board hearing.
Likewise, a determination by this court on the sufficiency of the School District’s notice is impossible, because the School District wholly failed to abstract any of the testimony presented at the school-board hearing. Furthermore, the addendum does not include the evaluations, correspondence, or memoranda from Russell’s personnel file that the School District submitted as exhibits at the school-board hearing. As we have repeatedly stated, the record on appeal is limited to that which is abstracted, and we will not go to the record to reverse the decision of the trial court. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000).
Because we conclude that the circuit judge erred in failing to examine the hearing record, and because we cannot perform a review of the record as abstracted, we are precluded from addressing the substantive arguments made by both parties. Thus, the judgment entered by the circuit court must be reversed and the matter remanded to the circuit court for a determination of the sufficiency of the nonrenewal notice based upon a full review of the evidence presented at the school-board hearing.
Reversed and Remanded.
Hannah, C.J., and Gunter, J., dissenting.
Dickey, J., not participating.
See also Lee v. Big Flat Public Schools, supra (teacher not prejudiced by school district’s failure to provide a timely and succinct notice that her contract would not be renewed because district sent her several documents over the course of a year clearly indicating that her position was being eliminated); Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988) (although school district reached a decision not to renew teacher’s contract before he received any notice that his conduct was being investigated, thereby rendering the timeliness of the notice insufficient, school district’s violation of the TFDA cured by rescinding the earlier vote and holding another vote); Caldwell v. Blytheville Arkansas School Dist., No. 5, 23 Ark. App. 159, 746 S.W.2d 381 (1988) (while school district did not strictly comply with the TFDA by mailing teacher’s notice to him, teacher not prejudiced because school district substantially complied by providing him with detailed reprimands stating that further unacceptable behavior would result in immediate termination). | [
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Jim Gunter, Justice.
Appellees Jackie and Connie Ivy brought this contract action for specific performance and damages against appellant Byme, Inc., operating under the name of RE/MAX International Relocation Services, Inc. (“RE/MAX”), for breach of a contract to purchase property from the Ivys. The jury returned a verdict in favor of the Ivys on their claim for specific performance and awarded damages in the amount of $158,847.71. RE/MAX appeals, arguing that the circuit court erred in refusing to grant its motion for directed verdict and in giving instructions to the jury. We affirm.
In 1997, RE/MAX entered into an agreement with Jackie Ivy’s employer, Huntco Steel, to provide relocation services to Huntco’s employees in exchange for a fee paid by Huntco. RE/MAX’s services consisted of obtaining an appraisal of the employee’s home, sending the employee a contract of sale, along with various other documents, and offering to purchase the home for the appraised value. Once the employee executed the contract of sale and other documents, RE/MAX would pay the employee his equity in the home, assume the employee’s mortgage, and list the home for sale. For these services, Huntco agreed to pay RE/MAX an initial fee of 7% of the home’s appraised value, plus 4.5% of the appraised value for every quarter that the home remained in RE/MAX’s inventory.
In July 2001, the Ivys were in the process of relocating when they received a letter from RE/MAX notifying them that Huntco had “contracted with us to provide you with our Home Purchase Program” and that, as soon as an appraisal could be obtained, the Ivys would “receive a verbal offer on your home and a formal written offer package will be sent to you.” On September 10, 2001, the Ivys received a document package from RE/MAX offering to purchase their property for its appraised value of $612,500. The package contained a warranty deed naming the Ivys as grantors, but it failed to identify a grantee or amount of consideration. It also contained an owner’s affidavit and an Irrevocable Limited Power of Attorney and Affidavit of Delivery and Acceptance of Warranty Deed, which acknowledged the following: the “Warranty Deed is and has been irrevocably delivered to the control of RE/MAX without recourse”; RE/MAX “shall have the absolute authority and power to enter, or cause to be entered, the date, financing terms and the name of “Grantee” into the said Deed”; and “the delivery of the deed to RE/MAX and acceptance thereof by RE/MAX shall be sufficient delivery so as to operate as a valid conveyance of the property.” The packet also contained a Contract of Sale naming RE/MAX as the buyer of the home.
The Ivys signed the Contract of Sale and related documents necessary to transfer title to the property and returned them to RE/MAX on September 13, 2001. In accordance with the Contract of Sale, the Ivys moved out of the house on October 9, 2001. RE/MAX paid the Ivys the agreed upon equity in two payments, the last of which was wired to the Ivys in early November of2001.
RE/MAX sent a letter to Regions Bank, the mortgage lender on the home, identifying the Ivys home by loan number and address and explaining to Regions that RE/MAX was “a homebuying corporation” and that it had “acquired this property for resale purposes only.” The letter informed Regions that, until the home was resold, “all payments will be made by RE/MAX International Relocation Services, Inc., as owners under contract.”
Huntco failed to pay the invoices sent by RE/MAX and, in February 2002, filed for bankruptcy. By letter to the Ivys dated February 12, 2002, RE/MAX explained that Huntco had failed to pay RE/MAX; that RE/MAX was thereby released under the Contract of Sale; and that it would not make any additional mortgage payments or any other maintenance payments on the home. RE/MAX also demanded reimbursement from the Ivys for payments made in the amount of $55,858.81.
The Ivys filed this lawsuit against RE/MAX on June 7, 2002, in Craighead County Circuit Court, alleging that the sale of their home to RE/MAX “was complete.” They demanded specific performance of the contract. In response to RE/MAX’s argument that it was released from any and all obligations under the contract because of section 6(f) of the contract, the Ivys filed a motion for summary judgment, arguing that section 6(f) of the contract was unenforceably vague. The trial court granted the Ivys’ motion and ordered RE/MAX to specifically perform the contract of sale and to pay damages to the Ivys to compensate them for amounts they had spent on the property since February 2002. The court of appeals reversed the order of summary judgment, holding that section 6(f) was not unenforceably vague. See Byme, Inc. v. Ivy, 84 Ark. App. 406, 141 S.W.3d 913 (2004) (“Byme I”).
On remand, the circuit court held a jury trial. At the close of the evidence, RE/MAX moved for a directed verdict, arguing that, in Byme I, the court of appeals determined that section 6(f) was a condition subsequent; that Mr. Ivy testified he understood this section of the contract; that it was undisputed Huntco had not fulfilled its obligations to RE/MAX; that there was no provision in the contract limiting the period of effectiveness of section 6(f); and therefore that RE/MAX was released from all obligations under the contract. The circuit court denied the motion, ruling that “the contract taken as a whole submits issues for the jury in connection with this case.” The jury returned a verdict for the Ivys, finding that RE/MAX breached the contract and awarding damages in the amount of $158,847.71 to compensate the Ivys for expenses paid on the house. RE/MAX filed an appeal with the Arkansas Court of Appeals.
The court of appeals reversed, holding that section 6(f) of the Contract of Sale released RE/MAX from its obligations under the contract once Huntco failed to perform, and consequently, that the circuit court should have directed a verdict in favor of RE/MAX. See Byme, Inc. v. Ivy, 94 Ark. App. 88, 226 S.W.3d 15 (2006) (“Byme IF’). The Ivys filed a petition for review of the court of appeals’ decision. We granted the Ivys’ petition pursuant to Ark. Sup. Ct. R. 2-4 (2006). When this court grants a petition for review of a decision of the court of appeals, it reviews the case as though it had originally been filed in the Arkansas Supreme Court. Ark. Sup. Ct. R. l-2(e). Deaver v. Faucon Properties, Inc., 367 Ark. 288, 239 S.W.3d 525 (2006).
RE/MAX brings two points on appeal: first, the circuit court erred in denying its motion for directed verdict and, second, the circuit court erred in its instructions to the jury regarding section 6(f). Essential to both of these arguments is RE/MAX’s contention that section 6(f) unequivocally released RE/MAX from further performance under its contract with the Ivys once Huntco failed to perform its payment obligations to RE/MAX. Section 6(f) of the Contract of Sale states as follows:
6. EXPRESS CONDITIONS: As express conditions of the Contract, it is specifically understood and agreed that
f. RE/MAX is relying upon the Sellers’ employer to make certain payments to it and, therefore, each and every obligation of RE/MAX under this contract is expressly contingent upon the Sellers’ employer fulfilling all of its obligations to RE/MAX. Sellers agree that RE/MAX is released from any and all obligations of the Contract should the Sellers’ employer fail to perform any of its duties with RE/MAX.
First, we address RE/MAX’s argument that the circuit court erred in denying its motion for directed verdict. A directed verdict motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a motion for directed verdict, we determine whether the jury’s verdict was supported by substantial evidence. The Bank of Eureka Springs v. Evans, 353 Ark. 438, 453, 109 S.W.3d 672, 681 (2003). We have defined substantial evidence as follows:
Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty and it must force the mind to pass beyond mere suspicion or conjecture. State Auto Property Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and we give that evidence the highest probative value. Id. A motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).
D’Arbonne Constr. Co., Inc. v. Foster, 354 Ark. 304, 307-08, 123 S.W.3d 894, 897-98 (2003).
RE/MAX contends that the court of appeals’ construction of section 6(f) as a condition subsequent in Byme I was binding upon the circuit court as law of the case and required it to direct a verdict in favor of RE/MAX. Specifically, RE/MAX claims that the court of appeals in Byme I remanded the case solely for the circuit court to determine whether the condition subsequent occurred. If it did, RE/MAX maintains, the circuit court was required to direct a verdict. RE/MAX contends that the evidence is undisputed that Huntco failed to meet its payment obligations to RE/MAX. Therefore, RE/MAX argues, under 6(f), it was released from the Contract of Sale with the Ivys. RE/MAX claims that it is irrelevant whether the contract was for the purchase of the Ivys’ home or the listing of their home. In either case, it claims the contract was cancelled if Huntco failed to perform its agreement with RE/MAX.
The Ivys respond, arguing that the law-of-the-case doctrine does not decide this case. First, they claim that law of the case does not apply when the facts were not fully developed before the first appeal and are materially changed after the trial on remand. See Wilson v. Wilson, 301 Ark. 80, 82, 781 S.W.2d 487, 488 (1989); Linograph Co. v. Bost, 180 Ark. 1116, 1120, 24 S.W.2d 321, 323 (1930). Second, they argue that section 6(f) is not the only contractual provision requiring interpretation. They contend that the ambiguous contractual relationship was required to be submitted to the jury in its entirety. They argue that determining whether a breach occurred required consideration of sections 6(f) and 7(d) of the Contract of Sale in addition to the remaining contractual documents and the construction the parties gave to the contractual documents, evidenced by their statements, acts, and conduct. See Sturgis v. Skokos, 335 Ark. 41, 53, 977 S.W.2d 217, 223 (1998). Finally, they conclude that under our standard of review, there is substantial evidence to support the jury’s verdict.
The doctrine of the law of the case prohibits a court from reconsidering issues of law and fact that have already been decided in a prior appeal. Jones v. Double “D” Properties, Inc., 357 Ark. 148, 161 S.W.3d 839 (2004). However, the court is not bound by obiter dictum, “even if couched in terms that infer the court reached a conclusion on the matter.” Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 347, 47 S.W.3d 227, 239 (2001). When discussion or comment is not necessary to the decision reached therein, the discussion or comment is an obiter dictum. Id. Furthermore, the law-of-the-case doctrine is not applicable if “there is a material change in the facts.” Wilson v. Wilson, 301 Ark. 80, 82, 781 S.W.2d 487, 488 (1989); see also Linograph Co., 180 Ark. at 1120, 24 S.W.2d at 323 (holding that law of the case does not apply where the facts have not been fully developed and there are other issues that have not been determined either by the trial or appellate court).
In order to determine what is the law of the case in this action, we must first determine what the court of appeals held in Byme I. The appeal in Byme I was from the circuit court’s order granting the Ivys’ motion for summary judgment, holding that section 6(f) was unenforceably vague and, therefore, that R.E/MAX was not released from its duties under the Contract of Sale. The court of appeals framed the issue before it in Byme I as: “whether paragraph 6(f) of the contract is so vague as to be unenforceable.” Id. at 410, 141 S.W.3d at 915. The court of appeals then held that it “d[id] not believe paragraph 6(f) is incapable of being understood,” id., and summary judgment was not appropriate. The court went on to describe its understanding of section 6(f) as being “in the nature of a condition subsequent.” Id. at 411, 141 S.W.3d at 916.
The law of the case in Byme I is that section 6(f) is not unenforceably vague. That was the issue before the court, and that was the issue the court of appeals decided. However, even assuming that the court of appeals’ statement that section 6(f) is in the nature of a condition subsequent is law of the case does not resolve the parties’ dispute in the present appeal. To determine whether the Ivys were entitled to specific performance of the contract required the circuit court to do more than simply determine whether Huntco failed to fulfill its obligations to RE/MAX. The question in the circuit court was whether RE/MAX was required to perform its obligations under the contract. That is, did the parties enter into a contract for sale, pursuant to which RE/MAX purchased the Ivys’ property, or an agency agreement, pursuant to which RE/MAX merely agreed to list the Ivys’ property for sale? And, in either case, was there any limit on section 6(f) or did the parties intend for RE/MAX to be released at any point in the future should Huntco fail to pay?
In order to make this determination, one must look at the entire contract. Section 7(d) states: “The provisions of this Contract, unless fully performed, shall survive the execution and delivery of the deed and shall not be merged therein.” While section 6(d) may not be vague or unclear standing alone, it was not error for the circuit court to conclude that it is ambiguous when construed with section 7(d). We stated in First Nat’l Bank of Crossett, 310 Ark. 164, 832 S.W.2d 816 (1992), that it is
a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from the beginning to end, and all its terms must pass in review, for one clause may modify, limit or illuminate the other.
Id. at 170, 832 S.W.2d at 819.
With regard to interpreting potentially conflicting clauses in a contract, we have stated that, if possible, the clauses should be reconciled:
In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled. The object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement.
Sturgis, 335 Ark. at 53, 977 S.W.2d at 223 (quoting RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 556, 713 S.W.2d 462, 465 (1986)). Furthermore, if there is an ambiguity in a contract, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts, and conduct. Id. Finally, ambiguities in a written contract are construed strictly against the drafter. Universal Security Ins. Co. v. Ring, 298 Ark. 582, 586, 769 S.W.2d 750, 752 (1989).
In order to determine whether the jury’s verdict was supported by substantial evidence, we turn to the evidence presented to the jury in this case. The testimony of two witnesses was presented at trial. Mr. Ivy testified that he thought he was selling his home to RE/MAX. He believed that he conveyed title to RE/MAX when he executed the deed and the power of attorney on September 12, 2001, and then vacated the house on October 9, 2001, as required by the contract. While he acknowledged his understanding of section 6(f) of the contract, he thought it applied only up to the point of closing, that is, when he was paid his equity. He based this belief on the language in section 7 (d) stating that the provisions of the contract survived execution and delivery of the deed “unless fully performed.”
RE/MAX employee Paula Bogle testified that the documents were prepared by RE/MAX or at RE/MAX’s direction. She admitted that after execution of the deed and the power of attorney by the Ivys, nothing else was required from the Ivys for RE/MAX to convey title to a third party. She also admitted that the Ivys had fully performed the contract when they vacated the house on October 9, 2001.
The jury was presented with a number of documents that reflected the parties’ agreement. “[W]hen two instruments are executed contemporaneously by the same parties in the course of the same transaction, the instruments should be considered as one contract for the purposes of interpretation.” Universal Security Ins. Co., 298 Ark. at 586-87, 769 S.W.2d at 753. First, the cover letter transmitting the documents to the Ivys stated that RE/MAX was “offering to purchase your property.”
Next, the Contract of Sale included the following provisions: “RE/MAX agrees to purchase and Sellers agree to sell and convey to RE/MAX or its nominee for the Appraised Value of $612,500.00” the Ivys’ home; “Sellers agree to vacate and deliver possession of the Home on or before October 9, 2001”; “The Sellers’ equity shall be paid based on your company’s relocation policy after receipt by RE/MAX of a copy of the Offer Letter, all legal documents provided by RE/MAX and properly executed by Sellers and this Contract properly executed by Sellers and upon receipt by RE/MAX of all information relating to taxes, encumbrances, mortgages, and other relevant information, all of which information RE/MAX shall promptly confirm”; “5. CONVEYANCE AND CONDITION OF TITLE: a. Within one year from the date hereof and upon the written request of RE/MAX, the Sellers agree to convey to RE/MAX or its nominee, or to a purchaser to be designated by RE/MAX, good and marketable title ... by a good and sufficient deed with general warranties of title in form acceptable to counsel for RE/MAX or its nominee”; and “6. EXPRESS CONDITIONS: As express conditions of this Contract, it is specifically understood and agreed that . . . c. RE/MAX or its nominee may assume any existing mortgages encumbering the Home to the extent permitted by the terms of any document creating such mortgage . . . ; provided, however, that if the Sellers can demonstrate that an existing FHA or VA loan must be satisfied in order for them to obtain similar financing on another residence, RE/MAX shall satisfy such loan within forty-five (45) days after receipt of the Sellers’ written request.”
Further, the Irrevocable Limited Power of Attorney and Affidavit of Delivery and Acceptance of Warranty Deed states: “Warranty Deed is and has been irrevocably delivered to the control of RE/MAX without recourse;” RE/MAX “shall have the absolute authority and power to enter, or cause to be entered, the date, financing terms and the name of “Grantee” into the said Deed;” and “the delivery of the deed to RE/MAX and acceptance thereof by RE/MAX shall be sufficient delivery so as to operate as a valid conveyance of the property.”
The Owner’s Affidavit executed by the Ivys stated: “This Affidavit has been made for the purpose of inducing RE/MAX International Relocation Services, Inc., a Colorado Corporation, through its Relocation Service, to purchase the premises owned by me . . . .” Finally, the letter RE/MAX sent to the Ivys’ mortgage lender stated that RE/MAX was “a homebuying corporation” and that it had “acquired this property for resale purposes only.” The letter informed Regions that, until the home was resold, “all payments will be made by RE/MAX International Relocation Services, Inc., as owners under contract.”
When the Ivys vacated the home, RE/MAX took possession under the contract. RE/MAX took over all payments on the home, including the mortgage, and listed the property for sale. Viewing the evidence and all reasonable inferences arising therefrom in the light most favorable to the Ivys, we hold that fair-minded people might conclude that the parties had entered into a contract under which RE/MAX purchased the Ivys’ home. Thus, we conclude that there is substantial evidence from which a jury could determine the agreement between the Ivys and RE/MAX was not an agency agreement under which RE/MAX simply agreed to list the Ivys’ property, but an agreement by RE/MAX to purchase the property.
We turn now to the question of whether there was evidence to support the jury’s verdict that section 6(f) did not release RE/MAX from its agreement. The language in section 7(d) states, “[t]he provisions of this Contract, unless fully performed, shall survive the execution and delivery of the deed and shall not be merged therein.” Thus, in order to harmonize this provision with section 6(f), the jury was faced with determining whether the contract was “fully performed.”
Both Mr. Ivy and Ms. Bogle testified that all of the documents necessary to transfer title to the property had been delivered to RE/MAX. At this point, the Ivys had no control over the property and no ability to sell it. While the reason RE/MAX purchased the property without putting its name on the deed and recording it was in order to resell it to a third party, this did not change the fact that RE/MAX could have inserted its name at any point and recorded the deed. In light of the fully executed irrevocable power of attorney, the Ivys had no control over who was named as grantee or when. Furthermore, the Ivys were not entitled to receive anything further from the sale of their home. The price for which RE/MAX resold the property was irrelevant to the Ivys.
In addition, while it is true that RE/MAX must continue to pay the mortgage for as long as it owns the property, this does not necessarily indicate that the contract was not “fully performed” within the meaning of section 7(d). Had Huntco not filed for bankruptcy and continued to make payments to RE/MAX, RE/MAX could have chosen to make mortgage payments and bill Huntco for the life of the mortgage. Huntco could have failed to perform ten years after the Ivys moved out rather than several months. Indeed, pursuant to the contract, RE/MAX was required to satisfy the loan if the Ivys proved it was a VA or FHA loan that must be satisfied in order for the Ivys to obtain similar financing on another residence. Viewing the documentary and testimonial evidence in the light most favorable to the Ivys, we find that there was substantial evidence to support the jury’s verdict that the parties had fully performed the agreement. Therefore, we hold that it was not error for the circuit court to deny RE/MAX’s motion for directed verdict.
RE/MAX’s second point on appeal is that the circuit court erred in refusing to give the following jury instruction proffered by RE/MAX:
As a defense to the Ivys’ claim of breach of the Contract of Sale, [RE/MAX] asserts that a condition subsequent under the Contract of Sale occurred, and the occurrence of the condition excuses [RE/MAX] from all performance of its obligations under the Contract of Sale. A condition subsequent is an occurrence or future event that defeats a contract already in effect if it occurs after the parties enter the contract.
Paragraph 6(f) of the Contract of Sale is a condition subsequent. The Ivys agreed to release [RE/MAX] from all obligations under the Contract of Sale if Mr. Ivy’s employer, Huntco Steel, Inc., failed to perform its obligations under the Agreement for Relocation Services between [RE/MAX] and Huntco Steel, Inc.
In order for [RE/MAX] to prevail on this defense, you must determine whether Huntco Steel, Inc. failed to perform its obligations to [RE/MAX] under the Agreement for Relocation Services.
Source: Byme, Inc. v. Jackie Ivy and Connie Ivy, Arkansas Court of Appeals, Case No. CA03-716, pp. 5-6 Qanuary 21, 2004).
A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. Southern Farm Bureau Cas. Ins. v. Daggett, 354 Ark. 112, 129, 118 S.W.3d 525, 535 (2003). We will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id.
The court denied RE/MAX’s request to give this instruction to the jury, ruling that it did not accurately embody the holding of Byme I. The circuit court stated that the language in the proffered instruction amounted to an unnecessary comment on the evidence and told the jury what to do rather than allowing the jury to decide what is correct. With regard to the reference to Byme I in the proffered instruction, the circuit court stated that it was “none of this jury’s business as to what happened in the Court of Appeals.”
The Ivys respond to RE/MAX’s argument, claiming that this jury-instruction argument merely reiterates RE/MAX’s law-of-the-case argument above. The Ivys claim that this instruction suggests that the only issue for the jury to decide is whether Huntco made payments to RE/MAX. They argue that it ignores other issues the jury should consider in connection with section 6(f), including the other provisions in the contract, the intent of the parties, the parties’ course of performance, and whether the condition was extinguished by “full performance.”
The following instruction was provided by the Ivys and used by the circuit court:
You must determine whether Jackie and Connie Ivy agreed with [RE/MAX] that [RE/MAX] would not be obligated to purchase their home if Mr. Ivy’s employer failed to make certain payments to [RE/MAX] after the Ivys gave possession of their home to [RE/MAX]. If you decide that Jackie and Connie Ivy did so agree, you must then decide whether Mr. Ivy’s employer failed to make the certain payments.
As a defense to its nonperformance of the contract, [RE/MAX] asserts that a condition subsequent occurred, which excused performance. A condition subsequent is a condition or future event specified in a contract that defeats a contract already in effect if it occurs after the parties enter into the contract.
For [RE/MAX] to prevail under this defense, you must determine whether the parties agreed that defendant would not be bound to fulfill the contract if Mr. Ivy’s employer failed to make certain payments to [RE/MAX] after the Ivys gave possession of the home to [RE/MAX], If you decide that Jackie and Connie Ivy and [RE/MAX] did so agree, you must then decide whether Mr. Ivy’s employer failed to make certain payments.
Once again, RE/MAX argues that the law of the case forbade the circuit court from allowing the jury to consider whether section 6(f) released RE/MAX from the contract at any time if Huntco refused payment. RE/MAX claims that the law of the case clearly states that if the jury determined that Huntco defaulted in its agreement with RE/MAX, RE/MAX’s duties under the contract with the Ivys were terminated pursuant to section 6(f).
We disagree with RE/MAX’s law-of-the-case argument for the reasons stated in our discussion of the motion for directed verdict above. The jury was required to consider the contract as a whole. Whether Huntco failed to make certain payments to RE/MAX triggering section 6(f) was merely one part of the jury’s analysis. The court of appeals did not hold that section 6(f) controlled the entire contract. The court of appeals merely resolved the issue before it, and held that section 6(f) was not “incapable ofbeing understood.” Byme I, 84 Ark. App. at 410, 141 S.W.3d at 915. The jury also had to determine whether delivery of possession by the Ivys constituted full performance, thereby merging the Contract of Sale into the deed and extinguishing the provisions in the contract, including section 6(f). We hold that the circuit court did not abuse its discretion in rejecting RE/MAX’s proffered instruction and in giving the jury instructions provided by the Ivys.
Affirmed.
Brown, Imber and Dickey, JJ., dissent.
Section 6(f) is an express condition of the Contract of Sale which states:
RE/MAX is relying upon the Sellers’ employer to make certain payments to it and, therefore, each and every obligation of RE/MAX under this contract is expressly contingent upon the Sellers’ employer fulfilling all of its obligations to RE/MAX. Sellers agree that RE/MAX is released from any and all obligations of the Contract should the Sellers’ employer fail to perform any of its duties with RE/MAX.
Presumably this section refers to the general principle of law that an agreement for the sale of land made prior to or simultaneous with a deed merges into the deed and is of no effect. See Surf Club, Inc. v. Lubin, 282 Ark. 150, 666 S.W.2d 405 (1984); Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982). In this case, the Ivys executed the deed and power of attorney before they were scheduled to vacate their home.
See Hixon v. Sch. Dist. of Marion, 187 Ark. 554, 60 S.W.2d 1027 (1933) (court listed essential attributes of ownership of property as the rights of dominion, possession, enj oyment, and disposition). Whether or not RE/MAX exercised all of its ownership rights, after transfer of possession and execution of the contract documents, these attributes rested in RE/MAX, not the Ivys. | [
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Betty C. Dickey, Justice.
Appellant Flagstar Bank appeals the order of Pulaski County Circuit Court, finding that the deed of trust to a mortgage that Flagstar held on the property at 17 Sherrill Road in Little Rock was founded on a forged deed and was thus void and without effect. Jurisdiction in this case is pursuant to Ark. Sup. Ct. R. l-2(b)(5).
Prior to the events comprising the present controversy, Rose Marie Gibbins owned the property located at 17 Sherrill Road (the property) in Little Rock. Sandi and Kenny Ganus were her friends and business associates, and occasional co-habitants of the property. In 1997, Gibbins signed a general durable power of attorney which granted Sandi Ganus broad power to transact personal business on Gibbins’s behalf, and to dispose of Gibbins’s property. Additionally, the document stated that it ratified the actions of Sandi Ganus, just as if Gibbins were present and performing the action with her own hand.
In May 1998, two deeds, a quitclaim deed and a warranty deed, were filed purporting to transfer the ownership of the property to the Ganuses. Both deeds were signed “Rose Marie Gibbins” and were acknowledged by “Sandra L. Vowell,” notary public. After the purported transfer, the Ganuses executed two mortgages on the property. The first, dated June 1, 1998, pledged the property to Mortgage Lenders Network USA, Inc. (Mortgage Lenders) in return for a loan of $267,000. The second, dated June 4, 1999, mortgaged the property to Metropolitan Mortgage Consultants in return for a loan of $389,750. Metropolitan immediately assigned that loan to the present appellant, Flagstar Bank.
Gibbins learned of the property transfer and mortgages in June 1999, at a meeting with her investment broker and officials from the Arkansas Securities Department. After being told of the transfer, Gibbins became upset and denied any knowledge of the quitclaim or warranty deeds and the mortgages. She stated that it appeared to her that Sandi Ganus had forged her signature on the deeds. Gibbins subsequently revoked Sandi Ganus’s power of attorney, and filed a police report and a civil action against the Ganuses.
On September 20, 1999, Gibbins filed suit in the Pulaski County Chancery Court to quiet title to the property, naming the Ganuses and Mortgage Lenders as defendants, but failing to name Flagstar. On February 11, 2000, the court entered a decree that quieted title to the property in Gibbins, and found that the quitclaim and warranty deeds had been obtained by forgery and were void, and that the deed of trust securing the mortgage to Mortgage Lenders was also void. The issue of damages was reserved for a later hearing. On May 5, 2000, the parties entered into a consent judgment that obligated the Ganuses to pay the outstanding loan to Flagstar.
Gibbins was later declared incompetent, and in December 2003, her guardians sold the property to Kelly and Michael McQueen, the intervenors in the present case. In January 2004, Gibbins and the McQueens brought the present quiet title action against Flagstar in Pulaski County Circuit Court. At a hearing on September 8, 2004, the trial judge found that the following requests for admission were deemed admitted as to the Ganuses: that Gibbins did not sign either the quitclaim or the warranty deed; and, that the signatures on both deeds were fraudulently obtained by the Ganuses. On March 10, 2005, the trial court entered an order denying Flagstar’s motion for summary judgment on the grounds of laches, judicial estoppel, and statute of limitations, and found the 1999 decree quieting title to the property in Gibbins void as to the Ganuses. At trial, the Ganuses invoked the Fifth Amendment as to all questions relating to the deeds. On April 28, 2005, the trial judge entered an order which found that the quitclaim and warranty deeds were forgeries and thus void and without effect, and further found that Flagstar’s mortgage was void. This appeal followed.
The appellant asks us to overturn the order of the trial judge in this case, based on the theories of laches, estoppel, express authority, ratification, waiver, judicial estoppel, the expiration of the statute of limitations, and insufficiency of the evidence as to forgery. Although the appellant mentioned these arguments at trial, the trial judge made no specific ruling on them, with the exception of the sufficiency of forgery evidence, either at trial, or in his order.
The trial judge denied the appellant’s motion for summary-judgment on the doctrines of laches, judicial estoppel, and the expiration of the statute of limitations, by an order entered on March 10, 2005. However, the denial of a summary judgment is not an appealable order, and is not subject to review on appeal, even after a trial on the merits. Rick’s Pro Dive ’N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). We have stated the rationale for this rule as being that a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied, since further evidence may be supplied at trial. Rick’s Pro Dive ’N Ski Shop, Inc., supra.
The final order of the trial judge provided a ruling on the sufficiency of the evidence as to forgery. However, the appellant did not obtain a ruling on any of the other theories it now advances. This court has repeatedly held that a party’s failure to obtain a ruling is a procedural bar to the court’s consideration of the issue on appeal. See, e.g., Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005); Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004); Finagin v. Arkansas Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (2003); White v. Davis, 352 Ark. 183, 99 S.W.3d 409 (2003). It was the appellant’s burden to obtain a specific ruling on these issues. Its failure to do so now precludes this court from considering the merits of those arguments on appeal.
The appellant’s sole remaining point on appeal is: The evidence was insufficient to prove forgery.
The appellant contends that the following evidence is sufficient to preclude a conclusion that the deeds were forged. Sandra Vowell David, the notary public who purportedly notarized the deeds, refused to confirm that it was indeed her signature on the deeds. The appellant argues that Sandra Vowell David’s testimony exhibited bias and animosity towards the Ganuses, as evidenced by the implausibility of David’s theories that Sandi Ganus appropriated her seal and contrived to have the deeds notarized inadvertently. The appellant also contends that Sandra Vowell David’s testimony was speculative. Flagstar further argues that the testimony of Gibbins’s investment advisor is due little weight, because he admitted that he did not actually witness Gibbins’s signing of the documents that he used when comparing the signatures of those documents to the allegedly forged signatures on the deeds. The appellant relies on the testimony of its handwriting expert, who opined that the copies of the signatures on the deeds available in the present case were so lacking in quality that no conclusive determination of their authenticity was possible. The appellant also points to the dearth of contemporaneous signatures from Gibbins available in the instant case, and the fact that Gibbins was no longer able to provide a signature at the time of the trial. The appellant argues that the questions asked to the Ganuses on direct examination were leading and improper. Lastly, the appellant contends that the Ganuses’ answer to the appellee’s amended complaint constituted a denial that they had committed forgery. In their answer to that complaint, the Ganuses stated that they only approved “as to form” the consent decree entered in the previous quiet title action, which found that they had obtained the deeds by forgery, and they further stated that the issue of forgery had not been litigated in that case.
The appellee produced the following evidence of forgery at trial. Gibbins immediately disavowed any knowledge or connection to the deeds upon first learning of them, and she declared that the signature on the deeds appeared to be her name in Sandi Ganus’s handwriting. After learning that her name was signed on the deeds, Gibbins revoked Sandi Ganus’s power of attorney, and filed a police report and a civil action against the Ganuses. Gibbins’s attorney and investment broker both opined that the signature on the deeds did not appear to be Gibbins’s. The notary public, Sandra Vowell David, formerly Sandra L. Vowell, who purportedly notarized the deeds, testified: that Gibbins never appeared before her; that she never consciously notarized anything for Sandi Ganus acting on Gibbins’s behalf; that her seal was lost for a period of two weeks and was discovered on the desk of Sandi Ganus; and, that Kenny Ganus offered her money not to testify in this case. The appellee also relies on the facts deemed admitted in this case, and thus conclusively established pursuant to Ark. R. Civ. P. 36(b), including the admissions that Gibbins signed neither of the deeds and that both were obtained through fraud by the Ganuses. And finally, the appellee notes the Ganuses’ refusal to testify with respect to the circumstances surrounding the signing of the deeds, a refusal from which negative inferences may be drawn. See Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
The trial judge in this case made a factual finding that both the quitclaim and warranty deeds were forgeries. That finding is entitled to substantial deference from this tribunal. In bench trials such as this, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark.R.Civ.P. 52(a) (2004); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 348 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).
As noted above, ample evidence that the deeds were forged was produced in this case. The appellant has produced no evidence in refutation that would impart a firm conviction to this court that the trial judge committed a mistake in finding that the deeds were forged, and consequently we do not disturb that finding.
Affirmed. | [
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Per Curiam.
Appellant Dallas Roy, through his attorney John May, filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to docket the appeal based on a failure to comply with Arkansas Rules of Appellate Procedure — Civil 5(b)(1), regarding an extension of time to file the record.
Attorney John May represented appellant below. The court entered an amended judgment and commitment order on November 3, 2005. The next day, Mr. May filed a motion to be relieved as attorney of record, but no order granting the motion or substituting counsel appears in the record. On November 14, 2005, appellant filed a pro se motion to file the record as a pauper, stating that he had no money or assets to pay for the trial transcript. There is no order granting the motion. Appellant also filed a timely pro se notice of appeal on the same day.
After the filing of the notice of appeal, it appears that Larry Dean Kissee was hired to represent appellant, although there is neither an order relieving Mr. May nor a petition by Mr. Kissee to be substituted as counsel. On January 5, 2006, Mr. Kissee filed a motion for extension of time to file the record. In that motion, he stated that the trial court no longer had jurisdiction to grant appellant’s motion to be found indigent. The motion stated that the appellant ordered the trial transcript but was unable to pay for it. Further, appellant’s attorney stated that the reason for the needed extension of time to file the record was the delay in obtaining a determination of appellant’s indigency. The court found good cause was shown that the motion should be granted and extended the time for lodging the record to May 24, 2006. To date, no motion to proceed in forma pauperis has been filed with the clerk of this court.
When determining the timeliness of a record on appeal, the Arkansas Supreme Court clerk applies Arkansas Rule of Appellate Procedure-Civil 5(b)(1), to civil and criminal cases. That rule provides:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b)., has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required by its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
This court has made it clear that there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006). The record before us does not show strict compliance with Rule 5(b)(1).
We further note that Mr. May is still counsel of record for appellant. Rule 16 of the Rules of Appellate Procedure — Criminal provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest ofjustice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.
Because Mr. May was not relieved before the notice of appeal was filed, he was obliged to perfect the appeal. Sanders v. State, 329 Ark. 363, 952 S.W.2d 113 (1997). While the clerk’s office has received correspondence from Mr. Kissee on appellant’s behalf, no motion for substitution of counsel has been filed with this court as required by Rule 16. Accordingly, Mr. May remains appellant’s counsel until relieved by this court.
Remanded for compliance with Rule 5(b)(1). | [
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Per Curiam.
Thurman Ragar, Jr., a full-time, state-salaried public defender in Sebastian County, was appointed by the trial court to represent appellant, Thomas Lee Stone, an indigent defendant. Following a trial held on June 26, 27, and 29, 2006, appellant was found guilty of nine counts of rape and sentenced to serve four life sentences together with five twenty-year sentences, with the sentences to run consecutively. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R. App. P. - Crim. 2, and the record has been lodged in this court.
Mr. Ragar now seeks to be relieved as counsel for appellant in this criminal appeal, based upon the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Ark. Code Ann. § 16-87-201 et seq. (1998).
Since the court’s decision in Rushing, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “A person employed as full-time public defender, who is not provided a state-funded secretary may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005).
Mr. Ragar’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his mo tion to withdraw as attorney on direct appeal. Greg Knutson will be substituted as attorney of record in this matter. The clerk will establish a briefing schedule. | [
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Jim Gunter, Justice.
This appeal arises from the conviction and sentence of appellant, Christy Suzanne Vidos, by a Boone County jury for the death of her estranged husband, Lloyd Vidos. Appellant was convicted of capital murder, a violation of Ark. Code Ann. § 5-10-101 (Repl. 1997), a Class Y felony, and tampering with physical evidence, a violation of Ark. Code Ann. § 5-53-111 (Repl. 1997), a Class D felony. Appellant was sentenced to life imprisonment without parole with six years to be served concurrently on the tampering charge. On appeal, appellant makes six allegations of error. We affirm the jury’s verdict.
Appellant and Vidos were married, had two children, and lived in Berwick, Louisiana. After some time, the marriage became strained, and the two separated. Appellant moved back to Boone County with her boyfriend, Leslie Paray, and Vidos filed for divorce. Appellant later had a child with Paray, and they were married in Boone County prior to the divorce being finalized.
In July of 2002, appellant and her parents, Jonny Cris and Sharon Acuff, traveled back to Berwick to collect some of appellant’s personal property. Vidos traveled with appellant back to Boone County in a U-Haul truck. When they arrived in Boone County, appellant and Vidos were supposed to go to the Acuff residence on Daniels Road, but instead, they went to a vacant house on her parents’ property on Shake Rag Hollow Road, which is located in an isolated, rural area of Boone County. She left Vidos there, and she and Paray returned to the vacant house. Appellant’s father later picked up his daughter at the vacant house, but Vidos was not there.
Metz Vidos, the victim’s father, notified Louisiana law-enforcement officials that his son was missing. On August 8, 2002, the Berwick Police Department contacted the Boone County Sheriffs Office, requesting assistance in locating the victim. His father stated that, in a cell phone conversation on August 3, 2002, his son told him that he was in front of a vacant, white house on the Acuff property. Mr. Vidos had not been able to reestablish contact with his son after that phone call. Further, Mr. Vidos discovered that his nine millimeter handgun was missing.
On August 9, 2002, officers from the Boone County Sheriffs Office conducted a search of the area. That afternoon, Captain Mark Rupp contacted Donna Phillips, a Fayetteville attorney, who told the officer that Scott Acuff, appellant’s brother, told her where the body was located. Phillips described a location on the Acuff property on Shake Rag Hollow Road. Officers responded and located the decomposing body of the victim approximately .6 miles off the road in a hollow amidst rugged terrain. After discovering the body, officers contacted Phillips again and interviewed her. She advised them that appellant and others were present at the office. Phillips stated that appellant said that she “stumbled” upon the victim’s body. According to Phillips, appellant, after telling her parents, contacted Phillips, and Phillips advised appellant to contact the Boone County Sheriffs Office and report the information she knew. The officers surmised that it would be unlikely for someone to “stumble” across a body in this particular remote location that was accessible primarily by four-wheel vehicles.
Officers conducted an examination of the scene approximately .2 miles from the residence on Shake Rag Hollow Road and found an area that appeared to be scraped by a front-end loader. They also found a small round clock with Velcro on the back, as well as a cardboard tag for a pair of work gloves. Officers also noticed that trees had been pushed down by a tractor. Later, near the Acuff s residence on Daniels Road, officers found a tractor with a strip of Velcro that matched the clock and thistles in the radiator of the tractor that matched the thistles in the field where the body was found.
A search warrant was executed on the pickup truck belonging to appellant’s father, which was identified as having been driven by Paray. There, officers discovered work gloves that matched the cardboard tag, and a shovel and other tools, which contained blood, were discovered in the bed of the truck. Officers also discovered a block of wood containing hair or fibers in the truck.
On August 9, 2002, Jonny Cris Acuff, appellant’s father, was interviewed by the Boone County Sheriff s Office and originally denied any knowledge of the murder. However, Acuff later stated that he and Paray drove the tractor, and he saw the scraped area where the clock was found. He saw flies in the area and detected a strong odor. The next day, Acuff talked with his wife, who told him that “it” had been moved. When he asked what “it” was, she replied, “Lloyd’s body.” Acuff also told officers that his daughter came to him on August 4, 2002, and asked him to teach her to drive the tractor.
On August 10, 2002, Sharon Acuff, appellant’s mother, was interviewed at the Boone County Sheriffs Office. She stated that on August 6, 2002, appellant and Paray discussed moving the victim’s body. She also stated that the victim had given appellant a nine millimeter handgun prior to the shooting. She revealed that appellant told her several different stories, including that the victim wished to commit suicide. Acuff further stated that, on August 9, 2002, Paray had told her that he shot the victim two times with a nine millimeter handgun and had killed Vidos. Paray told appellant’s mother that he shot the victim at the abandoned house on Shake Rag Hollow Road.
On August 15, 2002, appellant was charged with capital murder and tampering with physical evidence. The State alleged that appellant acted with Leslie Paray in shooting Lloyd Vidos and in hiding his body. Appellant’s parents were charged with hindering apprehension or prosecution. The charge against Jonny Cris Acuff was nolle prossed, and Sharon Acuff was placed on probation. Leslie Paray pleaded guilty to first-degree murder and was sentenced to life imprisonment.
On June 3, 2004, appellant filed a motion to suppress her custodial statements made to Kenneth Barnes, a jailer, and her statements to Phillips, which were disclosed to the State during its investigation. Appellant also filed a motion to prohibit the testimony of Donna Phillips and a motion to suppress the evidence obtained at the scene. Subsequent amended and supplemental motions were filed.
An order was entered on November 3, 2004, denying appellant’s motion to suppress the statement to the jailer, denying the statements made to Donna Phillips, and denying the motion to suppress physical evidence obtained from the Shake Rag Hollow property.
Appellant’s jury trial was held in November 2004, but a mistrial was declared. On January 24, 2005, a retrial was conducted, and the jury found appellant guilty of capital murder and sentenced her to life imprisonment with six years concurrent for the tampering charge. On January 13, 2005, the circuit court entered a judgment and commitment order. From this order, appellant brings her appeal.
I. Motion to suppress
For her first point on appeal, appellant argues that the circuit court erred in refusing to suppress appellant’s statement to a jailer. Specifically, appellant contends that the admission of the statement violated her Fifth and Sixth Amendment rights, as well as the analogous state constitutional guarantees under Article 2, §§ 8 and 10 of the Arkansas Constitution. Appellant asserts that she was not adequately warned that the statement would be used against her, as guaranteed by the Fifth Amendment. The State responds, arguing that appellant’s Sixth Amendment rights were not violated because she initiated communication with the police.
The appropriate standard of review for cases involving a trial court’s ruling on the voluntariness of a confession is that we make an independent determination based upon the totality of the circumstances. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). 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, 42 S.W.3d 536 (2001); Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In order to determine whether a waiver of Miranda rights is voluntary, we look to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id.
Both the Fifth and Sixth Amendments provide a right to counsel. Davis v. State, 330 Ark. 76, 83, 953 S.W.2d 559, 562 (1997). Under the Fifth Amendment, the right to counsel is derived from the amendment’s prohibition against self incrimination while in custody. See Miranda v. Arizona, 384 U.S. 436 (1966). In other circumstances, there may be a Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682 (1972) (Sixth Amendment right to counsel at critical stages of the prosecution). Once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the defendant initiates further communication. Michigan v. Jackson, 475 U.S. 625 (1986). However, an accused may waive her rights by initiating further communication with the police. Id. at 636.
Once the defendant initiates further communication, exchanges, or conversations with the police, any resulting statement may be admissible. Edwards v. Arizona, 451 U.S. 477 (1981). In Edwards, the Supreme Court held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates farther communication, exchanges, or conversations with the police. Id.
With these legal principles in mind, we turn to the present case. Here, appellant made a statement to Boone County jailer, Kenneth Barnes, on August 19, 2002. On August 22, 2003, Barnes made a statement, which was admitted into evidence at the hearing, in which he recounted the following events:
[Appellant] was reading the newspaper about when LesHe Paray went to court.... She went on to say that she didn’t understand how they could get them for premeditated murder when it “just happened.” She told me about how Paray was hiding in the weeds as LloydVidos started walking over to the car she was in when Paray shot him in the chest. At this point in time, I said, “What?” I couldn’t believe she was talking openly to me about the murder. I explained to her that she shouldn’t talk to me any more about this since I was a jailer. However, she kept going on about how Paray was drunk and had take someVicodins. She stated Paray wasn’t in his right mind. She also said that LloydVidos had molested her older girl, and that Paray was mad and in a rage about it. She then stated that Paray was hiding when he shot Lloyd Vidos in the chest. She went on to say that Mr.Vidos was suffering as a result of the shot to his chest so Paray shot Mr.Vidos again in the back of his head to end his suffering.
Add. 215.
Appellant asserts that Barnes reasonably believed that appellant’s statement would be used against her. In her brief, appellant admits that she was in custody and that she reasonably believed Barnes to be a law-enforcement officer. However, based upon Barnes’s statement, appellant clearly initiated communication with the police. Appellant, after reading an article in the paper about the murder, divulged to Barnes specific facts concerning the murder, specifically that Paray shot Vidos in the chest while hiding in the weeds. Barnes testified at the hearing that he did not ask appellant any questions prior to her outburst. Nor did he make any promises to her. Under Edwards, supra, appellant’s initiated communication constitutes a waiver and takes it out of the purview of the Fifth and Sixth Amendments. Michigan, supra. For these reasons, we affirm the circuit court’s ruling to admit appellant’s statement to Barnes. Because we affirm on the Fifth and Sixth Amendment issues, we affirm on the state constitutional grounds.
II. Waiver of lawyer-client privilege
For her second point on appeal, appellant argues that the circuit court erred in permitting testimony obtained in violation of the lawyer-client privilege under Ark. R. Evid. 502(b). At issue is appellant’s statement to Donna Phillips regarding the location of the victim’s body, which was relayed by Phillips to the Boone County Sheriff s Department. Specifically, appellant contends that Phillips’s testimony should not have been admissible because appellant did not waive the lawyer-client privilege, and she did not authorize Phillips to call law enforcement. The State responds, arguing that appellant waived any attorney-client privilege between Donna Phillips and appellant by consenting to the disclosure of the substance of their communications.
We have said that the trial courts have broad discretion and that a trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005).
The general rule of attorney-client privilege is set forth in Rule 502(b) of the Arkansas Rules of Evidence:
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
Id.
Moreover, it is the client who may claim the privilege. Ark. R. Evid. 502(c). Client is defined as “a person, ... who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.” Ark. R. Evid. 502(a)(1). Confidential communication is defined by the rule as follows: “A communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Ark. R. Evid. 502(a)(5).
The privilege attached to a confidential communication under Rule 502 is held by the client, and that privilege may be waived. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004). Inherent in the idea of waiver of privilege is the understanding that the client is allowing disclosure of something that was previously privileged as a confidential communication. Id. at 463, 182 S.W.3d at 117.
In the present case, Phillips testified that appellant, Leslie Paray, Jonny Cris Acuff, Sharon Acuff, Scott Acuff, and appellant’s cousin, Danny Johnson, came to her office in Fayetteville. She testified that appellant’s family discussed an issue regarding a body located on their property. She conveyed to them that she was not a criminal-law attorney, and, believing that they were not involved in the murder, she advised that they call the sheriff. Phillips left the room, and when she returned, she obtained their consent and placed the call to the sheriff on speaker phone. Phillips further testified that at no time was she alone with appellant. Thus, we conclude that Phillips’s testimony illustrates appellant’s waiver of the attorney-client privilege and appellant’s consent to call the police.
Further, we note that the credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. See Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005). Here, the circuit court gave weight to Phillips’s statement that appellant consented to Phillips’s disclosure to law-enforcement officers. Because the circuit court was in the superior position to determine Phillips’s credibility, we hold that the court did not err in its ruling.
III. Character evidence of the victim
For her third point on appeal, appellant argues that the circuit court erred in denying appellant the right to elicit evidence tending to corroborate testimony about the conduct of Lloyd Vidos. Specifically, appellant contends that Sharon Acuffs testimony concerning an allegation that the victim had molested one of his children should have been admitted into evidence.
The State argues that the circuit court did not abuse its discretion by excluding proffered testimony about the victim’s character. The State asserts that the circuit court was correct in ruling that Sharon Acuffs testimony was too speculative, confusing, misleading, and irrelevant.
Appellant presents her argument in the context of Rule 403 of the Arkansas Rules of Evidence. Rule 403 provides as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Id. We have noted that the operative word in Rule 403 is “unfair.” Diemer v. State, 365 Ark. 61, 225 S.W.3d 348 (2006). The fact that the evidence is harmful, or prejudicial, to one side or the other does not cause it to be inadmissible. Id.
In the present case, appellant sought to include the following testimony by Sharon Acuff. The following colloquy occurred:
Q: Okay. Did you — did — what behavior did you observe — and this in 2002, that you personally observed of your granddaughter, K., when she saw her father, LloydVidos?
A: When we would meet at Junction City she would — she would be okay if she seen Debra and Metz get out the car. The minute she seen Lloyd coming out she would start crying and just screaming. And Lloyd — Debra would have him get back in the car, go buy her some candy, and try to smooth it over. They would leave with her crying.
Q: Now, did — did — did you ever hear Lloyd say anything about — about K.? You personally hear Lloyd say anything about K.?
A: No.
Q: Okay. Did you suspect that something was amiss involving — involving K. and Lloyd?
A: Yes, I did.
Q: Did you call any ■ — ■ did you call — now, this is before Lloyd’s death. Did you call any social service agency or — or law enforcement agency?
A: No.
We agree with the circuit court’s ruling to exclude Sharon Acuffs testimony. Her testimony pointed to her granddaughter crying when taken from her grandparents to visit her father, rather than any specific proof of any allegations of child molestation. More importantly, she admitted that she never called any social-service agency or any law-enforcement authorities to report any incidents of child abuse. Without any further proof of child molestation, we hold that the circuit court was correct in its ruling that Sharon Acuff s testimony was too speculative.
We further note that appellant makes arguments regarding compulsory process, confrontation clause, and due process under the Fifth, Sixth, and Fourteenth Amendments, as well as Article 2, §§ 8 and 10 of the Arkansas Constitution. However, appellant fails to present any analysis under these rules, and without any further development, we decline to address the merits of these arguments. For these reasons, we affirm the circuit court’s ruling to exclude Sharon Acuff s testimony.
IV Jury instruction
For her fourth argument, appellant argues that the circuit court erred in refusing an instruction concerning different criminal liabilities of co-defendants. Specifically, appellant contends that the circuit court incorrectly based its decision upon Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Appellant asserts that the proffered instruction based on Ark. Code Ann. § 5-2-406 (Repl. 1997), is applicable and that the Jones case should be overruled.
The State argues that the circuit court did not err in rejecting appellant’s proffered instruction on accomplice liability. The State asserts that any error from the rejection of the proffered manslaughter and negligent-homicide instructions was cured by the jury’s verdict.
With regard to our standard of review, we have stated that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a trial court’s decision to give an instruction unless the court abused its discretion. Id.
Appellant proffered the following instruction based upon Ark. Code Ann. § 5-2-406:
When two (2) or more persons are criminally hable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that is consistent with his own mental culpability or with his own accountability for an aggravating fact or circumstance.
The circuit court rejected appellant’s proffered instruction on the basis of our holding in Jones, supra, where we considered the instruction based upon section 5-2-406. In Jones, the defendant proffered the statute as a non-model jury instruction to be substituted in place of a model jury instruction. The trial court refused to give the requested non-model jury instruction, and, in affirming the circuit court, we stated:
This court has previously held that although the proffered instruction is a correct statement of the law, it is not a model jury instruction and, further, that it is unnecessary to give it when its substance is covered by other instructions. See Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990) (citing Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980)); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).
Jones, 336 Ark. at 205, 984 S.W.2d at 439. We expanded the Jones case in Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006), where we stated, “Thus, we have limited Ark. Code Ann. § 5-2-406’s application to instances where two or more defendants are being tried together or where the criminal liability of the other codefendants has previously been decided.” Id.
We reject appellant’s argument to overrule Jones. We decline to overrule this precedent because we adhere to our well established skip rule, which provides that when a lesser-included offense has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still lesser-included offense is cured. Yankaway v. State, 366 Ark. 18, 233 S.W.3d 136 (2006). Appellant asserts that the circuit court erred in rejecting jury instructions on manslaughter and negligent homicide and instructing the jury on capital murder and the lesser-included offenses of first-degree and second-degree murder. We disagree with appellant’s argument. Here, the jury found appellant guilty of capital murder, the greater offense. The skip rule is applicable and, as such, any error that might have resulted from the trial court’s failure to instruct the jury was cured. Thus, the skip rule bars appellant’s argument that the circuit court abused its discretion in failing to give a manslaughter or a negligent-homicide instruction. Further, we note that we have relied upon our Jones holding in subsequent cases. See Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001) (holding that the circuit court was correct in refusing to give the non-model instruction based upon section 5-2-406); Wilson, supra. For these reasons, we affirm the circuit court’s ruling on this point.
V. Testimony of the victim’s mother
For her fifth argument on appeal, appellant argues that the circuit court erred in making three evidentiary rulings regarding testimony of Debra Vidos, the victim’s mother. That testimony includes Debra Vidos’s statements concerning (1) her son’s reaction to appellant’s affair with Paray; (2) conversations between appellant and her son concerning child custody and marriage; and (3) an alleged job offer made to her son.
The State argues that the circuit court did not abuse its discretion in its evidentiary rulings. Specifically, the State contends that the first point is unreviewable, and that the second and third evidentiary rulings did not contain any hearsay statements.
The State sought to admit this evidence under the catchall exception to the hearsay rule by filing an amended notice of intent to use hearsay. Rule 804(a)(5) provides a residual exception to the hearsay rule when the declarant is unavailable. A witness is “unavailable” only if she is absent from the hearing and the proponent of her statement has been unable to procure . . . her attendance or testimony ... by process or other reasonable means. Ark. R. Evid. 804(a)(5).
The circuit court was correct in its ruling for the following reasons. First, Debra Vidos testified that she saw appellant “in the company of Leslie Paray many times, on more than one occasion.” When the prosecutor asked how her son reacted, defense counsel objected. The circuit court conducted a bench conference with the State and defense counsel; however, the court did not make a ruling on Vidos’s statements concerning appellant’s company with Leslie Paray. Because appellant failed to obtain a ruling on this argument, we decline to address it. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
Next, the circuit court overruled defense counsel’s objections to Debra Vidos’s testimony concerning a phone conversation between appellant and the victim after their court date concerning custody of the children, their marriage, and a job offer. Here, Vidos did not testify as to what the victim said, but rather she testified as to her perceptions of whether appellant and her son would remarry. Finally, the circuit court overruled an objection pertaining to Debra Vidos’s knowledge of a job offer extended to her son. In this instance, Vidos’s testimony was admissible because she testified as to her son’s preparations in moving to Texas and Alaska. Thus, we conclude that Debra Vidos’s testimony was not hearsay. The circuit court was correct in its rulings because the statements were not offered for the truth of the matter asserted, but to explain the testifying officer’s subsequent actions in the investigation. See Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). For these reasons, we affirm the circuit court’s rulings on this point.
Further, we should note that appellant raises a confrontation-clause objection. However, the admission of non-hearsay raises no confrontation-clause concerns. See United States v. Inadi, 475 U.S. 387, 398 (1986).
VI. Suppression of physical evidence
For her sixth point on appeal, appellant argues that the circuit court erred in refusing to suppress physical evidence ob tained as a result of searches and seizures. Specifically, appellant divides her argument into the evidence seized at the properties at Shake Rag Hollow, Daniels Road, and Sweeney Lane. The State contends that the circuit court was correct in determining that this physical evidence was admissible.
It is well settled that capacity to claim the protection of the Fourth Amendment depends upon whether a person who claims the protection has a legitimate expectation of privacy in the invaded place. Katz v. United States, 389 U.S. 347 (1967). We must decide whether appellant has standing to challenge the search of the Acuffs’ property. Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Id. A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person’s premises or property. Id. One is not entitled to automatic standing simply because he is present in the area or on the premises searched or because an element of the offense with which he is charged is possession of the thing discovered in the search. Id. Any pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id.
First, we address the evidence seized on the Acuff property at Shake Rag Hollow Road. Here, appellant lacks standing to challenge the admissibility of this evidence. She was not an owner of the property, and at the suppression hearing, she did not meet the burden of showing a legitimate expectation of privacy in the property. In fact, the house on the property was abandoned and appeared to be used for storage. Additionally, the land was on an open road in which there is no legitimate expectation of privacy. See, e.g., Oliver v. United States, 466 U.S. 170, 180 (1984); see also Ark. R. Crim. P. 14.2.
Second, we consider the evidence seized at the Daniels Road property. Appellant raises a challenge to the admissibility of the blood on the tractor. The Daniels Road residence is appellant’s parents’ house, and she possesses a key. According to Deputy Tim Roberson, the tractor was parked in front of a gate beside a barn, which was located behind the Acuffs’ house.
The Fourth Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable. Oliver, 466 U.S. at 177. If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so. See Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000). Generally, one does not have a reasonable expectation of privacy in the yard, driveway, sidewalks, and other open areas of what we consider curtilage. See Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).
Here, the police officer did not violate appellant’s Fourth Amendment right to be free from unreasonable searches and seizures by merely walking from the house to the barn. After the officer knocked at the residence and discovered that no one was home, he walked around the house to see if Acuff was in the backyard. There, he saw the tractor with a front-end loader parked at the gate. He saw blood, the Velcro patch, and thistles in the radiator. The officer made these observations from a lawful vantage point. For these reasons, we hold that the circuit court did not err in refusing to suppress this evidence.
Third, appellant challenges the search and seizure at Sweeney Lane, appellant’s residence. There, officers seized a knife, a camouflage nylon bag containing assorted clothes, two receipts, a woman’s watch, and two pairs of latex gloves. Appellant takes issue with the search warrant. Specifically, appellant contends that the warrant “does not specify the city or county in which the warrant is to be served, does not contain the identity of the issuing officer or the place where application was made, does not contain any restriction as to a reasonable time when the warrant shall be executed, is not specific as to what may be searched, and what may be seized.”
The State responds that highly technical attacks, such as appellant’s, are not favored because the success of such attacks could discourage law-enforcement officers from utilizing search warrants. See Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). While a warrant must include a finding that there was probable cause for the search, that requirement does not mean that the warrant must recite, in detail, each of the specific facts on which the judicial officer bases his finding that probable cause exists. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).
Here, any alleged insufficiencies of the search warrant can be cured by the attached affidavit for search warrant filed by Investigator Jack Hutson and Captain Mark Rupp of the Boone County Sheriffs Office, as well as Sergeant David Lafferty of the Arkansas State Police. In the affidavit, the officers stated exactly what residence was searched and where it was located. Further, they noted that they did not know the whereabouts of appellant, Sharon Acuff, and Leslie Paray. They indicated that the facts established reasonable cause to believe that the objects to be seized were in danger of imminent removal. They also signed the statement, verifying the veracity of their sworn statement. Thus, through the affidavit, the officers provided in ample detail what the search warrant allegedly was lacking.
Appellant also argues that the same search warrant supporting the search of a red 1983 pickup truck, driven by the victim, was insufficient. Specifically, appellant makes numerous technical attacks, including that there was insufficient probable cause and that the warrant was unspecific. We have stated that the warrant, which was supported by an affidavit filed by Investigator Hutson, Captain Rupp, and Sergeant Lafferty, was sufficient. For these reasons, we affirm the circuit court’s ruling on this point.
The record in this case has been reviewed pursuant to Supreme Court Rule 4-3 (h) for reversible error, and none has been found. Dickinson v. State, 367 Ark. 102, 238 S.W.3d 125 (2006).
Affirmed.
Imber, J., not participating. | [
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Per Curiam.
Appellant Phillip Dwayne Duvall, by and through his attorney, has filed a motion for rule on clerk. His attorney, Louis L. Loyd, states in the motion that the record was tendered late due to a mistake on his 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, Mr. Loyd 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. | [
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Tom Glaze, Justice.
Appellant Timothy Howard was convicted of two counts of capital murder for the deaths of Brian and Shannon Day, and one count of attempted capital murder for the attempted killing of the Days’ infant son, Trevor. For these convictions, Howard received two death sentences and a sentence of thirty years in prison. In a 4-3 opinion, this court affirmed his convictions and sentences. See Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Following this court’s decision, Howard filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.5 on March 21, 2003. Howard subsequently filed an amended Rule 37.5 petition on April 12, 2004, raising eight grounds for relief. The Little River Circuit Court held a hearing on Howard’s petition on December 20, 2004, and issued its order on March 17, 2005, denying each of Howard’s claims for relief. Howard filed a timely notice of appeal, and now raises seven arguments for reversal.
In appeals of postconviction proceedings, we will not reverse a trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151(2004); Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Johnson, supra; Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
Howard’s first argument on appeal contends that he was denied his due process rights when the State introduced the testimony of trial witnesses Penny Granger and Darby Neaves, who both testified that Shannon Day was pregnant when she was killed, because the State knew that Shannon was not pregnant at the time of her murder. Howard argues that the State knowingly introduced false testimony in order to bolster its theory of the case, which was that Howard killed the Days because of his intimate relationship with Shannon. This alleged prosecutorial misconduct, Howard argues on appeal, violated his rights to due process.
Generally, Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Stated another way, it is not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000); Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). However, there is an exception to this general rule for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Rowbottom, 341 Ark. at 37, 13 S.W.3d at 906 (double-jeopardy claim was a fundamental claim that appellant could raise for the first time in Rule 37 proceedings); see also Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (right to twelve-member jury is such a fundamental right that it could be raised for the first time in a Rule 37 proceeding); Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990) (“[a] ground sufficient to void a conviction must be one so basic that it renders the judgment a complete nullity, [as,] for example, a judgment obtained in a court lacking jurisdiction to try the accused . . .”).
Howard argues that his constitutional right to due process was violated by alleged prosecutorial misconduct in the form of knowingly presenting false testimony; thus, the first question to be addressed is whether “prosecutorial misconduct” is a ground “so basic that it renders the judgment a complete nullity,” see Jeffers, supra, or whether it is an issue that should have been raised at trial or on direct appeal. This court has held that a claim of prosecutorial misconduct was “an issue that could have been raised at trial.” See Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987) (per curiam) (declining to consider an argument, raised for the first time in a Rule 37 proceeding, that the State had engaged in prosecutorial misconduct by failing to disclose a witness’s statement until only a few days before trial). Further, in Rowbottom, supra, this court declined to reach appellant Rowbottom’s Rule 37 argument regarding alleged discovery violations by the prosecution in not disclosing its intention to introduce certain evidence, because Rowbottom had not raised the issue either at trial or on direct appeal. Rowbottom, 341 Ark. at 40-41, 13 S.W.3d at 908-09. Therefore, we conclude that the issue of alleged prosecutorial misconduct is an issue that should have been raised on direct appeal, and is not a claim that may be raised for the first time in a Rule 37 petition.
In his second point on appeal, Howard argues that, under Ring v. Arizona, 536 U.S. 584 (2002), the information charging him with capital murder was defective because it failed to enumerate any of the four aggravating circumstances upon which the State relied to obtain the death penalty. The two counts of information charging Howard with capital murder, filed in Little River County Circuit Court on December 19, 1997, stated only that Howard was charged with committing capital murder “with the premeditated and deliberated purpose of causing the death of another person[.]” The information did not enumerate the statutory aggravating factors that the State subsequently submitted to the jury.
As with Howard’s first argument, this is a claim that should have been presented on direct appeal. As the State points out, even though Ring was decided mere days before this court denied Howard’s petition for rehearing, the direct-review process encompasses certiorari proceedings. See Caspari v. Bohlen, 510 U.S. 383 (1994). Thus, Howard could have presented his Ring- and Allen-based argument in his petition for writ of certiorari to the United States Supreme Court, but he did not. Accordingly, he is barred from raising it for the first time during the course of his postconviction proceedings. See Williams v. State, 346 Ark. 54, 56 S.W.3d 360 (2001) (even constitutional issues must be raised on direct appeal, rather than in Rule 37 proceedings).
Howard’s third point on appeal is that one juror, Larry Crutchfield, gave inaccurate responses during voir dire. In response to questions regarding his feelings about the death penalty, Crutchfield replied to the effect that he “d[id]n’t know about the death penalty,” “could not consider the death penalty,” and “could not go through with the death penalty” because he felt it was “too harsh and bad for society.” Juror Crutchfield also stated that he “would vote against capital punishment automatically” and “would vote against it without any consideration of facts or circumstances.” However, in an affidavit submitted in support of Howard’s Rule 37 petition, Crutchfield averred that he had “always believed that if you intentionally take a life then you should forfeit your life in return,” and that his responses during voir dire “do not now, nor did they at the time, reflect [his] philosophy about imposing the death penalty.” This inconsistency in Crutchfield’s responses, Howard argues, caused Howard to be denied a fair and impartial jury.
This court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court, and a defendant’s remedy for alleged juror misconduct is to directly attack a verdict by requesting a new trial pursuant to Ark. Code Ann. § 16-89-130(c)(7) (Repl. 2005). See Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995) (rejecting argument that claims of juror misconduct could be raised for the first time in a Rule 37 proceeding). Accordingly, Howard’s claims pertaining to juror Crutchfield’s alleged untruthfulness are not cognizable in this postconviction proceeding.
For his fourth point on appeal, Howard argues that the “dual role” of Little River County Sheriff Danny Russell as both bailiff and State’s witness was a denial of his due process rights. Sheriff Russell was called as the State’s first witness at trial and testified that he was the officer who discovered Brian Day’s body inside a padlocked U-Haul trailer; he also discovered Shannon Day’s body in a closet in the Days’ home. However, Sheriff Russell also served as the bailiff in the circuit court in which the trial was conducted. At the Rule 37 hearing, he testified that, as bailiff, he would escort the jurors between the courtroom and the jury room, and would occasionally serve coffee to all the jurors. He also stated that, even though he was a witness, he was allowed to remain in the courtroom as part of an agreement between the State and defense counsel, whereby the investigators on Howard’s defense team were allowed to stay in the courtroom during trial as well.
Thad Bishop, one of Howard’s trial attorneys, testified at the Rule 37 hearing that he and the other defense lawyers entered into an agreement with the State to allow both the sheriff and the defense investigators in the courtroom, even though “the Rule” had been invoked. Both Sheriff Russell and Bishop testified that they were unaware of any improper contact with the jury members.
On appeal, Howard cites Turner v. Louisiana, 379 U.S. 466 (1965), in support of his argument that this situation was presumptively prejudicial. However, we cannot reach the merits of Howard’s argument, as he waived any error that may have arisen from the sheriffs acting as witness and bailiff. First, this was an argument that could and should have been made on direct appeal. Second, as both the sheriff and attorney Bishop testified, the State and the defense agreed for the sheriff to remain in the courtroom in exchange for the defense team to be able to keep its investigators in the room as well. In Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001), this court held that the Rule 37 petitioner, Lee, had waived any argument concerning his Sixth Amendment right to conflict-free counsel when he agreed on the record that he was satisfied with his attorney’s services, despite allegations of a conflict of interest. Lee, 343 Ark. at 711-12, 38 S.W.3d at 340-41. Because Lee had waived the alleged conflict of interest prior to trial and did not raise the issue again on direct appeal, waiting instead until his Rule 37 petition, this court refused to consider his argument. Id. at 714, 38 S.W.3d at 342. Similarly, in the instant case, Howard and the State stipulated prior to trial that the sheriff could remain in the courtroom, even though he was both a witness and the bailiff. Because Howard waived the issue prior to trial and did not raise the argument on appeal, we hold that the argument is waived.
Howard’s fifth point on appeal concerns an issue that arose on the second day of trial. That morning, the trial court informed the parties that a juror, Barbara Williams, had approached the judge the day before to tell him that, during one of the breaks, she had overheard a police officer saying, “This jury is going to hang [Howard].” When the court confronted the officer with the accusation, the officer denied making the statement. The court inquired ofWilliams whether the remark had affected her ability to remain fair and impartial, and she indicated that it would have no effect on her and that she could still be a good juror. Howard’s attorney, Mac Carder, stated that the defense was comfortable with proceeding with Williams as a juror.
In his Rule 37 petition and on appeal, Howard argues that, when the trial court questioned the unnamed police officer and juror Williams alone and off the record, the court received extra-judicial evidence in violation of Howard’s Sixth Amendment right to be present when evidence is received. He asserts that, had the court wanted to inquire of the juror as to what happened, the court should have followed the procedure set out in Ark. Code Ann. § 16~89-125(e) (Repl. 2006), and that violation of this procedure “is regarded as so fundamental that it is an exception to the contemporaneous objection rule,” and that the error cannot be presumed harmless.
The State contends that Howard has raised an argument on appeal that was not made to the trial court. In his Rule 37 petition, Howard asserted that the off-the-record hearing between the court and Williams violated his right to confront and cross-examine witnesses against him — a different contention than the one he raises on appeal; further, Howard argues on appeal that the trial court should have followed the statutory procedures set out in section 16-89-125(e), an argument that was not raised before the trial court. However, Howard’s petition did assert that the discussion between the court and Williams violated his due process right to be present for all proceedings. This “critical stage” argument was thus raised before the trial court. However, the trial court did not address this argument in its order denying postconviction relief. Therefore, because Howard failed to obtain a ruling on this argument, we decline to address it. See Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005) (noting that it is appellant’s obligation to obtain a ruling in order to preserve an issue for appellate review); Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001) (failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000).
In his sixth point on appeal, Howard raises six separate claims of ineffective assistance of counsel; several of these claims have numerous subpoints. In an appeal from a trial court’s denial of a Rule 37 petition, the question presented to us is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). Under the standard set forth in Strickland, supra, to determine ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. See Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but to possible prejudice in the sentencing. Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Id. Furthermore, trial strategy is not a basis for postconviction relief. Wooten v. State, 352 Ark. 241, 91 S.W.3d 63 (2002).
In his first ineffective-assistance argument, Howard contends that the performances of his trial attorneys — Mac Carder, Latrece Gray, and Thad Bishop — were deficient because counsel did not adequately investigate and prepare for trial. At the Rule 37 hearing, attorney Carder testified that, at the time he tried Howard’s case, he had only tried three other death-penalty cases, and he had seven other active death-penalty cases pending throughout the state. He claimed that Howard’s case was “the most complex case [he had] ever been associated with,” due to the existence of two crime scenes and multiple witnesses, and he felt hampered by the fact that the Public Defender Commission, for which he worked, suffered from budgetary restraints that curtailed his ability to travel and investigate Howard’s case. On cross-examination, however, Carder agreed that he was certified by the Public Defender Commission to try death-penalty cases. Further, he noted that he spoke to over fifty witnesses and spent “hundreds of hours” doing so. In addition, he made “numerous trips” to Ashdown to conduct investigation, and probably spent a total of between 400 and 500 hours investigating the case.
Howard points to Carder’s admission that he had failed to adequately and properly prepare for trial, and that the errors he made were not matters of strategy, but were errors due to lack of investigation and preparation. However, we agree with the trial court’s rejection of this testimony, wherein the court found that, “[u]nder the Strickland standard, [counsel’s] performance is objectively evaluated according to professional standards of reasonableness, not by his own subjective assessment of his performance.”
In addition, Howard lists thirteen areas of investigation that he believes counsel should have pursued. More particularly, Howard argues that the defense’s pursuit of its theory of the case — that someone other than Howard committed the murders — prevented his attorneys from properly “trying to disprove the State’s case[.]” He further notes that this court’s majority opinion affirming his convictions found the most incriminating evidence against him to be his “inappropriate and unexplained behavior both before and after the discovery” of the Days. If counsel had “explained” the suspicious activities, he argues, he would not have been convicted, or at least would not have been affirmed on direct appeal.
Initially, we note that Howard did not enumerate the thirteen areas of investigation in his Rule 37 petition; rather, he relied on Carder’s admissions that he did not have sufficient time to investigate and follow up on leads, that he was not prepared for trial, and that he believed he was ineffective. Accordingly, because he has raised new arguments in his appeal that were not presented to the trial court, we will not consider his new assignments of error pertaining to these specific areas he believed counsel should have investigated. See Fisher v. State, supra.
Further, however, Howard’s argument essentially amounts to a challenge to his attorneys’ determination of how they could best try the case. For example, he argues, “Had defense counsel provided actual evidence rather than mere speculation of other people’s involvement with the Days on the night of the murders, . . . the case would have turned out differently.” However, counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy —■ an issue that does not constitute a basis for a finding of ineffective assistance of counsel. See, e.g., Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000); Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (even though another attorney may have chosen a different course, trial strategy, even ifit proves unsuccessful, is a matter of professional judgment).
In his second ineffective-assistance argument, Howard contends that his attorneys should have challenged the State’s expert testimony regarding mitochondrial DNA, hair analysis, fingerprints, and pathology evidence. He notes that, in support of his Rule 37 petition, he submitted the affidavits of Susan Herrero and Dr. Randall T. Libby, who opined that counsels’ failure to challenge this evidence, either through cross-examination or the use of independent experts, constituted ineffective assistance of counsel. Herrero’s affidavit contended that, had counsel conducted the proper investigation, they would have discovered that the laboratory that conducted the DNA analysis was not accredited. Libby averred that the failure to examine the DNA data thoroughly, and well in advance of trial, would not allow counsel time to competently prepare for trial.
However, Howard fails to describe how a more searching pretrial investigation or a more thorough cross-examination of the State’s expert would have changed the result of his trial. Instead, he simply states that counsels’ failure to challenge the State’s physical evidence constituted ineffective assistance. Such conclusory statements, wholly lacking in allegations of prejudice, fall far short of meeting the Strickland standard, and are insufficient to warrant Rule 37 relief. See Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002).
Howard’s next subpoint is that his attorneys should have either asked for a hearing or moved for a mistrial once they learned about juror Williams’s discussion with the court regarding the officer whom she overheard saying that the jury would “hang” Howard. He asserts that this failure fell below the objective standard required by counsel in death cases, and contends that counsel had an obligation to make sure that all evidence, testimony, and hearings be made a part of the record for purposes of appeal. Finally, he claims that his attorneys’ failure to do so violated his right to be present at all critical stages of his trial, an error, he urges, that is presumed prejudicial.
There is no merit to Howard’s argument. He contends that the taking of “extra-judicial evidence” outside of his presence violated his constitutional rights to be present at all critical stages of the trial, see Kentucky v. Stiner, 482 U.S. 730 (1987), and that prejudice is presumed from such error. See Roe v. Flores-Ortega, 499 U.S. 279 (2000). However, the Supreme Court has held that a “conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores [the] day-to-day realities of courtroom life and undermines society’s interest in the administration ofjustice.” Rushen v. Spain, 464 U.S. 114, 119 (1983) (per curiam). The Court stated that, when an ex parte communication relates to some aspect of the trial, the court should disclose that communication to counsel for all parties, and the prejudicial effect of the court’s failure to do so can be determined at a posttrial hearing. Id. at 119 (emphasis added). Further, the federal constitutional question of whether the alleged constitutional error was harmless depends to a great degree on the trial court’s factual findings regarding the substance of the ex parte communications and their effect on the juror. Id. at 120. If the lower court makes a factual determination that the jury’s deliberations, on the whole, were not biased, then that decision is accorded all due deference. Id.
In Rushen, the Court determined that the communication between the juror and judge was innocuous, and the juror and judge did not discuss any fact in controversy or any law applicable to the case. Id. at 121. On these facts, the Court held, the state courts correctly found that the jury’s deliberations were not biased by the undisclosed communication of the juror’s concerns to the court. Thus, any alleged constitutional error was harmless beyond a reasonable doubt. Id.
Here, as noted above, the juror communicated to the court that she had heard a comment from an officer that the jury was going to “hang” Howard. The trial court notified counsel of this communication, and the juror informed the court that she could remain unbiased and had not been prejudiced by the officer’s comment. Counsel was obviously satisfied with the juror’s response, because the offer of a hearing on the issue was declined. Accordingly, this court cannot presume prejudice from the fact of an unrecorded ex parte communication between the juror and the judge.
In addition, attorney Bishop testified at the Rule 37 hearing that the defense team did not want to lose Williams as a juror, stating that he “thought [she] was an excellent juror,” and that he had coached her son on a mock-trial team. He further stated that he and the other attorneys talked about whether or not to .keep her, and they decided together that if they made “a big issue” out of the situation, it might cause the State to excuse her, which would leave them having to call an alternate juror. Finally, Bishop testified that he and the other attorneys felt comfortable with the questions the judge asked Williams about whether she could be fair and impartial, and none of them had any complaints about how the court handled the inquiry. He said that their “thinking at that time was that we needed to get past this quickly before the prosecutor changes his mind and tries to strike her.”
Clearly, this was a matter of carefully considered trial strategy. It is clear that, in Arkansas, matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for finding ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004); Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003).
Howard’s fourth contention regarding his attorneys’ alleged ineffective assistance arises from their conduct during jury selection. He notes that his counsel used only seven of their twelve peremptory strikes, and argues that, as a result, several jurors were seated who had biases that warranted the exercise of peremptory strikes.
This court will not label counsel ineffective merely because of possible bad tactics or strategy in selecting a jury. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Jurors are presumed unbiased and qualified to serve. Echols, supra; Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985) (per curiam). To prevail on an allegation of ineffective assistance of counsel with regard to jury selection, a petitioner first has the heavy burden of overcoming the presumption that jurors are unbiased. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984) (per curiam). To accomplish this, a petitioner must demonstrate actual bias, and the actual bias must have been sufficient to prejudice the petitioner to the degree that he was denied a fair trial. Id. Bare allegations of prejudice by counsel’s conduct during voir dire that are unsupported by any showing of actual prejudice do not establish ineffective assistance of counsel. Echols, supra; Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983) (per curiam), cert. denied, 465 U.S. 1051 (1984).
Howard challenges his attorneys’ decisions to seat four specific jurors: Janet Wright, Kenneth Gentry, Leander Lewis, and Ida Hooks. Regarding Janet Wright, Howard argues that she was the sister of Phillip Bush, one of the State’s witnesses, and that she stated during voir dire that “she would require Howard to prove his innocence.” However, during voir dire, Wright stated that she had never discussed the case with her brother, and that she had not formed an opinion about the case. Although she did say that she would “expect and require the defendant to prove his innocence,” she clarified her answer when she was asked if she could follow the judge’s instructions that the defendant did not have to prove his innocence, saying that she would “have to weigh the evidence that had been submitted.” She further stated that she would not hold it against Howard if he did not testify.
At the Rule 37 hearing, Carder testified that he remembered telling the other lawyers that he was uncomfortable with Wright, but if he had been certain that she would have been a bad juror, she would not have sat on the jury. In addition, attorney Bishop stated that he and the other lawyers discussed Wright and decided they wanted her, partly because she was acquainted with the victims, and they thought she might have some knowledge of “what Brian Day was into,” apparently a reference to his drug dealing. Based on this testimony, the decision to keep juror Wright was clearly a matter of trial strategy, and as noted above, this court will not label counsel ineffective because of “possible bad tactics” injury selection. Echols v. State, 354 Ark. at 556, 127 S.W.3d at 502.
The next juror with whom Howard takes issue is Kenneth Gentry. On appeal, Howard argues that Gentry was an “automatic death penalty” juror, stating in his brief that Gentry testified that he would “not be willing to consider any evidence with regard to a person’s history when deciding whether or not to impose the death penalty.” However, Howard’s claims in his brief appear to be at odds with Gentry’s actual testimony during voir dire. The abstract of voir dire reflects that Gentry stated that he understood that the defense could present mitigating circumstances, and that the jury would have to look at the aggravating circumstances and weigh them against the mitigating circumstances in order to make a decision on whether or not to assess the death penalty or life imprisonment. Further, he understood that there was a “presumption that life without parole is the more appropriate sentence,” and said that it was “fair for the State to have to prove beyond a reasonable doubt that the death penalty is the more appropriate sentence.”
At the Rule 37 hearing, Bishop testified that he and the other attorneys made the decision to keep Gentry on the jury because he had served on a Sevier County jury in an arson case that Bishop tried; that jury convicted the defendant, but only fined him. Again, the decision to keep Gentry was a matter of trial strategy. See Camargo, 346 Ark. at 125, 55 S.W.3d 260 (the decision to seat or exclude a particular juror may be a matter of trial strategy or technique). Further, Gentry’s answers to voir dire do not indicate that he was biased against Howard. See Echols, 354 Ark. at 557, 127 S.W.3d at 503 (a petitioner must demonstrate actual bias; bare allegations of prejudice by counsel’s conduct during voir dire that are unsupported by any showing of actual prejudice do not establish ineffective assistance of counsel).
Howard next challenges his attorneys’ decision to seat juror Leander Lewis. Howard claims that Lewis was also an “automatic death penalty” juror, and that he expected the defendant to prove his innocence. Again, however, Howard takes an individual comment by the juror out of the larger context in which it was made. During voir dire, Lewis stated that his opinion of the death penalty was that, if the State proved the crime and the law called for it, the death penalty should be carried out. Even so, he said, he would consider life imprisonment as a punishment. In addition, Lewis testified that he believed in the constitutional provision that an accused is innocent until proven guilty, and although he “would think that the defendant would have to present evidence to prove his innocence,” he stated that he would abide by an instruction from the judge that the defendant does not have to prove his innocence.
At the Rule 37 hearing, Carder testified that he wanted to keep Lewis on the jury because he was a member of the NAACP. Bishop also said that Lewis’s NAACP membership was a factor, and he also noted Lewis’s comment that ninety percent of the people he had spoken to believed Howard did not commit the • crime. Accordingly, the lawyers’ decision to keep Lewis on the jury was a matter of trial tactics; moreover, as with juror Gentry, Lewis’s answers during voir dire indicated that he was not an “automatic death penalty” juror, and Howard cannot demonstrate actual bias on that basis.
Finally, Howard challenges the selection of Ida Hooks. Hooks informed counsel during voir dire that she had a thyroid condition and a sleeping disorder, and that, because of her condition, she might go to sleep as she sat in the jury box. She said that she had a new medication that helped with the problem, but it was still “very easy” for her to fall asleep. After both the State and defense counsel expressed that Hooks was acceptable, the court noted its concern, saying it would be necessary to keep an eye on Hooks during the trial, and that if she dropped off a number of times, the court might have to use an alternate.
The selection of Hooks to serve on the jury was not unreasonable. She stated that her medication helped her condition, and Carder testified that the defense team wanted to keep her because she was from the Ogden area and was familiar with the scene. Attorney Gray stated that she and the others wanted African-Americans on the jury. Bishop stated that Hooks was married to a minister whom Bishop knew, and “everybody knew and liked them.” Thus, the choice to select Hooks for the jury was a reasoned decision by the attorneys.
Howard argues further that it was ineffective assistance to keep Hooks on the jury once it became apparent that she had fallen asleep several times during the trial. After the State concluded its case, the judge asked counsel if they wanted to keep her, as she had fallen asleep at least three or four times. Counsel eventually decided against removing her from the jury, agreeing that they would “see how she [did during] the afternoon.” Subsequently, after the defense rested, the court noted on the record that, for the last few hours, Hooks had not been sleepy, and that no one had had “to go over there and nudge her or anything.” Carder stated that the defense had no concerns or objections to Hooks staying on the jury.
At the Rule 37 hearing, Bishop testified that he, Carder, Gray, and Howard made a decision to keep Hooks on the jury after the court brought her sleeping to their attention. The four of them agreed that they did not want the first alternate to replace Hooks, because the alternate was a middle-aged white woman from “someplace else.” Thus, it is again the case that the decision to keep Hooks on the jury was a matter of trial strategy. Further, Howard does not point to any specific instance of Hooks’s sleeping through any particular point of the trial that he felt might have been significant, such that she might have missed critical evidence. Accordingly, he has failed to demonstrate how he was prejudiced by Hooks’s serving on his jury. Absent such a demonstration of prejudice, Rule 37 relief is not warranted.
In this fifth subpoint, Howard complains of his attorneys’ performance during the State’s closing arguments, asserting that, had his counsel properly responded or objected to three specific comments made by the State during closing arguments, there is a reasonable probability that the outcome of the trial would have been different. The first comment came when, during the State’s closing argument, the prosecutor made the following statement:
They want you to believe someone was out there meeting with Brian; thatTim Howard wasn’t out there. Can I stand up here and tell you that there was no one out there besides Tim Howard and Brian Day? No, I can’t. Can I tell you that no one was helpingTim Howard commit this offense, that no one was out there and helped him do any of this? No, I can’t. But what’s incredibly important, the bottom line, what’s incredibly important in this case is that you don’t have to believe Tim Howard was by himself. You don’t have to believeTim Howard committed this offense by himself to convict him. Because if, and I say a very big if, there were some people,' somebody with Tim Howard in that field, that person, those persons, if there is somebody, are just as guilty as Tim Howard. And if there is somebody, if there was someone and they were arrested and they were charged, they would face the same punishment as Tim Howard. Just like him, they would have their day in front of someone like you. Before I even get into the evidence here, please understand that you do not have to believe he committed this by himself.
Mac Carder objected to the foregoing statement, arguing to the trial court that this was an improper argument because there was no accomplice instruction in the case. The State responded that it did not have to have an accomplice instruction to say that, if there were other people involved, they could be charged. The court overruled the objection, but told the State to “stay away from it” and not to go back into it. Carder subsequently asked the court to admonish the jury that there was no accomplice instruction in the case and that they should not consider that. In the alternative, Carder asked that the jury be admonished that they were to consider only the evidence, and not the argument of counsel. The court agreed to give that admonishment to the jury, but refused to admonish them about the accomplice instruction.
On appeal, Howard argues that his attorneys were ineffective for failing to raise this issue in the direct appeal. Had they done so, he contends, his conviction could have been reversed. However, Howard’s attorneys properly raised an objection and sought an admonition from the trial court. Even though the issue was not raised on direct appeal, this court nonetheless considered the trial court’s decision to overrule Howard’s objection as part of its review of all adverse rulings pursuant to Ark. Sup. Ct. R. 4-3 (h) and concluded that there was no error. See Howard, 348 Ark. at 496, 79 S.W.3d at 289. In State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005), this court held as follows:
Ark. Sup. Ct. R. 4-3(h) requires an appellant in such a case to abstract all rulings adverse to him on all objections, motions, and requests made by either party. In Fudge’s direct appeal to this court, we stated that “[i]n accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by appellant James Fudge but not argued on appeal, and no reversible error was found.” Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).
We reviewed all errors, including the denial of [the motion that Fudge claimed should have been argued on appeal], and implicitly found no reversible error. Since there was no reversible error, counsel was not ineffective for failing to argue this point on appeal. Counsel cannot be found ineffective for failing to make an argument that has no merit. See Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993). Because this issue was settled in Fudge’s direct appeal, it is now the law of the case and cannot be reargued here. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999)[.]
Fudge, 361 Ark. at 428-29, 206 S.W.3d at 862-63. The same reasoning applies in the instant case; it was determined on direct appeal that this ruling did not constitute reversible error, and Howard’s counsel therefore cannot have been ineffective for fading to raise it.
Howard next argues that his counsel were ineffective for failing to ask for a mistrial or seek an admonition when the State asked the jury, during its closing argument, whether it “ever once hear[d] the word remorse” from Howard. Attorney Gray objected to that comment, arguing that “[t]he only words or remorse that could come out is out of Tim Howard’s mouth, and it’s an improper comment on [his] right not to testify.” The trial court responded that it didn’t “know that it is a comment. It might be reflected or could be reflected, so let’s just avoid it.” Howard raised this issue on direct appeal; however, this court rejected his claims, writing as follows:
When an objection to a statement during closing argument is sustained, an appellant has been given all of the relief requested, and, consequently, there is no basis to raise the issue on appeal unless the appellant requests admonition to the jury or a mistrial. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Furthermore,a comment is improper when it draws attention to the fact, or comments on, the defendant’s failure to testify. Jones [v. State, 340 Ark. 390, 10 S.W.3d 449 (2000)].
Here, Howard did not seek further relief by moving for a mistrial or requesting an admonition to the jury. However, even if Howard had moved for a mistrial or an admonition to the jury, the comment did not refer to Howard’s failure to testify. Rather, Howard never expressed remorse to the witnesses that testified, not that he failed to express remorse to the jury.
Howard, 348 Ark. at 489, 79 S.W.3d at 284 (emphasis added).
Rule 37 does not provide an opportunity for an appellant to reargue points that were settled on direct appeal. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002); Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Therefore, there is no merit to Howard’s arguments on this issue.
For his final claim regarding his attorneys’ ineffective assistance during the State’s closing arguments, Howard argues that his attorneys should have objected to several comments that the prosecutor made to the jury that were allegedly unsupported by the evidence. There are three specific statements by the prosecutor to which, Howard argues, his attorneys should have objected. The first is as follows:
• The State’s fourth aggravating factor is that in the commission of a capital murder the defendant knowingly created a great risk of death to a person other than the victim. When this defendant placed that little baby in the dark confines of that zipped-up canvas bag crammed with clothes, to muffle its bleating cries for help, slowly using up its short supply of air, he truly created a risk of death to little Trevor Day.
Howard argues that the State had introduced no physical evidence to support this argument, and that his attorneys therefore should have objected to the comment during the trial. He concedes that Trevor was found in a bag with clothes piled on top of him, and that investigating officers only found him because they heard him crying; nonetheless, he claims, because the baby was crying, “it is clear that there was no danger of loss of air.” However, the evidence introduced at trial showed that Trevor, who was found with what appeared to be a lamp cord tied tightly around his neck, was “almost to the bottom [of a canvas bag with] clothing all piled up on top of the baby [and the] bag was zipped up.” Thus, the comment about the baby “using up his short supply of air” was a fair inference from the evidence, see Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom), and counsel did not render ineffective assistance by failing to object to the comment.
The second comment to which Howard contends his attorneys should have objected is the following:
• You heard one of the aggravating factors, cruel and depraved. ... Brian ... suffered... that night. Not only did he go through that unbelievable beating, he laid in that U-Haul alive and suffered.
Howard argues that the evidence did not show that Brian Day suffered in the back of the U-Haul, because the medical examiner’s testimony made it clear that Brian would have lost consciousness immediately upon sustaining any of his fatal injuries, including the hinge fracture to his skull, strangulation, or the bullet wound to the back of the head. However, the medical examiner, Dr. Charles Kokes, testified that Brian’s body exhibited defensive injuries, indicating he was alive long enough to struggle. In addition, Dr. Kokes stated that there was an “extraordinarily large amount of blood in the U-Haul where the body was found,” which indicated that he was placed in the U-Haul while he was still alive. Therefore, the suggestion that Brian suffered in the U-Haul was a fair inference from the evidence.
Finally, Howard challenges his attorneys’ failure to object to the following comment during closing arguments:
• [P]robably the most horrible thing that happened that night was [Shannon Day] watching her seven month old child being strangled in front of her. I submit to you, ladies and gentlemen, the last thing that Shannon Day saw before she died was her seven month old baby hanging from an extension cord. That’s how she left this world.
Howard raised an argument concerning this comment on direct appeal. Although the majority opinion acknowledged the State’s argument that Howard failed to object to this comment, the court went on to conclude that the remark was not an error that required a sua sponte admonition from the trial court, and that the remark was a fair inference from the evidence. Howard, 348 Ark. at 495, 79 S.W.3d at 288 (finding it “plausible that Shannon Day watched the attempted murder of Trevor because of the antemortem wounds discovered on Shannon’s body”). As noted above, Rule 37 does not provide an opportunity for an appellant to reargue points that were settled on direct appeal. See Kemp, supra.
This court has noted that experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Sasser, supra (citing Cohen v. United States, 996 F. Supp. 110 (D. Mass. 1998)).
Howard’s final argument regarding his allegations of ineffective assistance of counsel pertains to his attorneys’ performance during the sentencing phase of his trial; in this point, he raises eight subpoints. In the first of these eight sub-arguments, Howard argues that Latrece Gray, who conducted the sentencing portion of his trial, was ineffective because she failed to discover Howard’s history of physical and psychological abuse, which could have been associated with mental impairments that would have constituted mitigating factors. In addition, Howard asserts that Gray was ineffective because she failed to ask for funds for a psychologist and a neuropsychologist.
A trial counsel’s failure to investigate and present substantial mitigating evidence during the sentencing phase of a capital murder trial can constitute ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510 (2003) ; Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is error. Echols, supra; Coulter, supra. Such error, however, does not automatically require reversal unless it is shown that, but for counsel’s errors, there is a reasonable probability that the sentence would have been different. Echols, supra. When reviewing a claim of ineffectiveness based upon failing to present adequate mitigating evidence, we view the totality of the evidence — both that adduced at trial and that adduced in the postconviction proceeding. Id.
In support of his Rule 37 petition, Howard submitted the affidavit of Scharlette Holdman, a mitigation specialist with the Center for Capital Assistance. Holdman averred that Howard’s records, including portions of the trial transcript and his file from the State Hospital, revealed that he had a “compelling history of physical and psychological abuse that is commonly associated with significant mental impairments that range from brain damage to major psychiatric illness such as mood disorders.” Holdman further opined that trial counsel should have discovered and presented to the jury the fact that Howard had suffered physical and emotional abuse in his childhood, and that Howard suffered from depression and drug and alcohol abuse. In addition, Holdman stated her belief that counsel should have investigated and prepared Howard’s social and medical background, which would have demonstrated the extent and severity of Howard’s mental impairments.
On appeal, Howard argues that Holdman’s affidavit “pointed toward investigations to determine whether [he] had significant brain injury.” However, as the State points out, there is no evidence that, even assuming that these investigations were ever conducted, Howard actually suffered from “brain injury.” Howard has failed to provide evidence proving that further investigation would have produced proof that he suffered from any sort of mental disorder that would have functioned as mitigating evidence. Conclusory allegations such as this fall far short of meeting the Strickland standard, and are insufficient to warrant Rule 37 relief. See Danshy v. State, supra.
Further, at the Rule 37 hearing, Gray testified that Howard’s trial was her first death-penalty trial. She further agreed that the defense team did not request money for a mitigation expert, and she agreed with Holdman’s assessment of her performance. However, Gray also estimated that she had spent “anywhere from ten to fifteen hours a week on this case” for two years, which the trial court calculated to have amounted to between 1000 and 1500 hours of work. She stated that she was ready when they went to trial, although she could have used more time. Regarding Howard’s mental status, Gray said that she spent about two or three hours a week with him for two years, and felt that she “knew him as well as [she] could.” Based on Howard’s mental evaluations and her personal observations of him, she noticed no signs of any type of psychosis. During the sentencing phase of the trial, Gray called twenty-one witnesses to testify on Howard’s behalf. On these facts, the circuit court correctly determined that Gray did not fail to investigate and develop mitigation evidence.
Howard next contends that Gray was ineffective because she did not submit, on the jury’s Form 2, the statutory mitigating circumstances set out in Ark. Code Ann. § 5-4-605 (Repl. 2006). In support of his argument, he cites Sheridan v. State, 313 Ark 23, 852 S.W.2d 772 (1993), which, he contends, requires that the statutory mitigating circumstances should always be submitted to the jury. Sheridan did not, however, hold that the failure to submit the statutory mitigating factors to the jury constitutes ineffective assistance of counsel. Rather, Sheridan held, consistent with Penry v. Lynaugh, 492 U.S. 302 (1989), that the defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. Sheridan, 313 Ark. at 39, 852 S.W.2d at 779. Further, not only must relevant mitigating evidence be admitted, it must actually be considered, which in appropriate cases means specifically instructing the jury to do so. Id.
Here, Gray testified at the Rule 37 hearing that she, the other attorneys, and Howard made a conscious choice not to submit the statutory mitigating factors, such as “the capital murder was committed while the defendant was under extreme mental or emotional disturbance” and “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 law was impaired as a result of mental disease or defect, intoxication, or drug abuse,” because they were inconsistent with their defense of innocence. In addition, she stated that they chose not to utilize the mitigating circumstance that “the defendant has no significant history of prior criminal activity,” because the evidence in the case showed that Howard did have a past of criminal activity, including drug dealing. These strategic decisions, the circuit court found, were “reasonable decision[s] based upon trial strategy.” Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. See Simpson v. State, 355 Ark. 294, 127 S.W.3d 486 (2003).
Next, Howard argues that Gray was ineffective for not submitting an instruction that would have informed the jury that a sentence of life imprisonment would really have meant that Howard would have spent the rest of his life in prison, without the possibility of parole. However, even assuming that Gray should have requested this instruction, Howard cannot demonstrate that he was prejudiced by this failure, because Gray specifically told the jury, during her closing arguments, that “If you put Tim Howard in prison, he won’t be in heaven [as Brian and Shannon Day are]. Life without parole means just that. You die in prison.” Accordingly, the jury was informed that “life means life,” and the failure to request an instruction stating the same thing could not have resulted in prejudice to Howard.
Howard’s fourth contention under this heading is his argument that the fact that the State twice extended an offer of a life sentence should have been submitted as a mitigating circumstance, because “such offers are mitigating circumstances under Lockett v. Ohio, 438 U.S. 586 (1978).” However, Lockett did not hold that plea offers are admissible as mitigating circumstances; rather, it held that, to meet constitutional requirements, “a death penalty statute must not preclude consideration of relevant mitigating factors.” Lockett, 438 U.S. at 608. The consideration of mitigating factors, according to the Lockett Court, means that a jury must be permitted to “consider[ ] the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. at 604.
Under Arkansas law, “relevant mitigating evidence” includes “the character or history of the offender or the circumstances of the offense.” See Sheridan, 313 Ark. at 38, 852 S.W.2d at 779. Further, Ark. R. Crim. P. 25.4(a) (2005) provides that “[n]o evidence of any discussion between the parties, or any statement made by the defendant, or of the fact that the parties engaged in plea discussions shall be admissible in any criminal . . . proceeding[.]” Accordingly, it was not ineffective assistance of counsel for Howard’s attorneys to fail to submit the fact that the State offered him a life sentence as a mitigating circumstance.
Howard next contends that Gray was ineffective in her presentation of the mitigating evidence, in that “there was nothing at all coherent or organized about the presentation of the evidence of the many mitigating circumstances presented here. They were disjointed and not grouped to show similarities, and it was not apparent what many of them said about Howard’s life.” However, Howard cites to no authority that requires a “cohesive” strategy for presenting mitigation evidence. This court has repeatedly held that it will not consider an argument on appeal that has no citation to authority or convincing legal argument. See McGahey v. State, 362 Ark. 513, 210 S.W.3d 49 (2005); Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003); Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
In his sixth subpoint, Howard claims that his attorneys were ineffective in failing “to appeal the jury’s refusal to find undenied mitigation.” He argues that the jury marked all but seven of the forty-three mitigating circumstances presented in Part C of Form 2, checking the statement that, while there was evidence presented to support these circumstances, “the jury unanimously agreed it was insufficient to establish that the mitigating circumstance(s) probably existed.” None of the mitigating circumstances was challenged by the State, Howard argues, so there was no basis in the evidence to find that they did not exist. He further contends that, because the jury made these inconsistent findings, counsel should have raised the issue on appeal and was ineffective for failing to do so.
In Echols v. State, 326 Ark. 917, 942, 936 S.W.2d 509, 520 (1996), this court held that “a jury may generally refuse to believe a defendant’s mitigating evidence, but when there is no question about credibility and, when, in addition, objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion.” The State asserts that Howard’s witnesses were not of “indisputable” credibility, nor did not present irrefutable, objective proof of his mitigating factors, so there was no appealable error in the jury’s decision to disbelieve Howard’s witnesses.
Regardless of the quality of Howard’s witnesses, however, the jury’s actions in completing Part C of Form 2 constituted harmless error, because the jury also found beyond a reasonable doubt that four aggravating circumstances existed and that those aggravating factors outweighed any mitigating circumstances beyond a reasonable doubt. See Robbins v. State, 356 Ark. 225, 233, 149 S.W.3d 871, 875-76 (2004). Accordingly, counsel could not have been ineffective for failing to challenge the manner in which the jury filled out the verdict form.
Howard’s next argument contends that trial counsel should have objected during the State’s presentation of victim-impact testimony from Darby Neaves. Neaves, as mentioned above, spoke of Brian and Shannon Day as “soul mates with two children and one on the way.” Neaves also read a statement from the Days’ daughter, Karley, who said that she did not like Howard any more, and she did not like what he had done to her mom and dad. Neaves also read statements from one of Brian Day’s brothers. In this appeal, Howard argues that the State’s second closing argument in the penalty phase was “devoted almost entirely to victim impact. Inasmuch as this encouraged the jury to impose the death penalty based on sympathy for the survivors, this evidence and this argument was a denial of due process.”
However, Howard cites no authority that would indicate why Neaves’s testimony constituted improper victim-impact evidence or that his attorneys would have been successful had they raised this argument on appeal. In addition, his attorneys did object to Neaves’s comment about a “third [child] on the way.” Moreover, the trial court did not render a ruling on Howard’s contention that the State’s closing arguments violated Howard’s due process rights. In the absence of a ruling on a specific issue, we will not address the argument on appeal.
Finally, Howard urges that trial counsel should have objected to the use of the “cruel or depraved” aggravating circumstance jury instruction because the instruction did not define the phrase “cruel or depraved.” This argument is without merit, because even if the instruction did not define “cruel or depraved,” the verdict form that the jury completed did contain definitions of both terms.
Howard’s final point on appeal is that the errors in his trial were so numerous and egregious that their cumulative effect denied him due process and a fair trial. However, this court has held that we do not recognize cumulative error in allegations of ineffective assistance of counsel. See Huddleston v. State, 339 Ark. 266, 272, 5 S.W.3d 46, 50 (1999); Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Accordingly, we reject Howard’s final claim.
Affirmed.
Hannah, C.J., and Special Justice A. Watson Bell, dissent.
Corbin, J., not participating.
The amended petition was not verified by appellant, as required by Ark. R. Crim. P. 37.1(c); because this is a death-penalty case, on May 25,2006, this court issued a per curiam opinion giving Howard fifteen days to file a properly verified petition. See Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006) (per curiam). Howard filed his supplemental record on June 8,2006.
The medical examiner stated at the Rule 37 hearing that, although it did not appear that Shannon was pregnant at the time of her death, unless she was in the very early stages of pregnancy, he could not absolutely prove that she was not.
At trial, the State argued that the testimony regarding Shannon Day’s alleged pregnancy was relevant to prove a sexual relationship between Howard and Shannon and to demonstrate that there was a conflict between Howard and Brian Day — a contention that could have provided a motive for the murders.
Ring, supra, does not hold that aggravating factors must be set forth in the charging document. Rather, Ring declared unconstitutional the Arizona capital sentencing scheme, which permitted a trial court, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty. “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi [v. New Jersey], 530 U.S. [466] at 494 n.19, the Sixth Amendment requires that they be found by a jury.” Ring, 536 U.S. at 609. The Eighth Circuit has held that, in federal prosecutions, any fact, other than prior convictions, that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. See United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005). However, the Allen court did not extend this holding to state prosecutions. Id. at 942 (noting that the Fifth Amendment’s grand-jury requirement has not been construed to apply to the states).
Those four aggravating factors were as follows: 1) in the commission of the capital murder, Tim Howard knowingly created a great risk of death to a person other than the victim; 2) in the commission of the capital murder, Tim Howard knowingly caused the death of Brian Day and Shannon Day in the same criminal episode; 3) the capital murder was committed for pecuniary gain; and 4) the capital murder was committed in an especially cruel or depraved manner. The jury unanimously determined that the State proved each of these aggravating circumstances beyond a reasonable doubt.
That statute provides that, “[a]fter the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.”
At trial, Howard’s theory of the case was that he had not committed the murders, and that he had been “framed” by unknown third parties. Had his attorneys conducted the additional hair, fiber, and fingerprint testing that Howard now argues should have been done, the testing might have revealed results that were unfavorable to the defense’s strategy. Accordingly, his attorneys’ decision not to pursue these additional lines of investigation was a matter of trial strategy.
This court has noted that a sleeping juror is not per se prejudicial. See Henderson v. State, 349 Ark. 701, 80 S.”W!3d 372 (2002) (following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct); Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996).
Citing Wiggins, supra, Howard argues on appeal that his attorneys were ineffective in their failure to investigate, discover, and utilize mitigating evidence such as his traumatic childhood. However, Howard did not raise his Wiggins argument to the trial court, and we will not consider an argument that is raised for the first time on appeal. See Fisher v. State, supra.
The court’s finding on this issue stated simply as follows: “The court notes that trial counsel did object to the use of victim impact evidence. The court finds that the victim impact evidence was not used improperly and was submitted in accordance with Ark. Code Ann. § 5-4-602(4).” | [
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Jim Hannah, Chief Justice.
Appellant Jairo Montgomery was convicted of possession of methamphetamine with intent to deliver, and he was sentenced to a term of 420 months in the Arkansas Department of Correction. For reversal, Montgomery argues that the circuit court erred: (1) in denying his motion for change of venue; (2) in denying his motion to suppress; (3) in allowing the State to introduce tape-recorded conversations without showing one party’s consent to the recording, as required by the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq.; and (4) in denying his request to submit a jury instruction on entrapment. The court of appeals certified this case to this court pursuant to Ark. Sup. Ct. R. l-2(b)(l) and (5), as a case involving an issue of first impression, and one needing clarification or development of the law. We find no error and affirm.
While the sufficiency of the evidence has not been challenged, we will briefly summarize the facts. On November 8, 2003, officers from the Paragould Police Department executed a search warrant for Billy Sheridan’s residence, located at 731 West Locust, in Paragould. During the search, a cell phone rang several times. Officer Rhonda Thomas answered the píione, and the male caller asked to speak with Sheridan. Thomas told the caller that Sheridan could not come to the phone, and she asked the caller if he wanted her to give Sheridan a message. Thomas testified that the caller, who was subsequently identified as Montgomery, said, “[T]ell him this is Jau and tell him it’s good, it’s all good.” Thomas then told Officer Arvin Volner about the conversation. Volner testified that Sheridan agreed to cooperate with the police, so Volner instructed Sheridan to call Montgomery in an attempt to set up a controlled delivery of methamphetamine. Sheridan arranged for the delivery, and Montgomery and others arrived with the substance at the designated time. Montgomery was arrested and taken to the Paragould Police Department, where Volner interviewed him the next day. In a recorded statement, Montgomery admitted to Volner that he possessed methamphetamine and intended to deliver it to Sheridan.
Denial of Motion for Change of Venue
Montgomery first argues that the circuit court erred in denying his motion for a change of venue from Greene County. This court has held that a criminal case may be removed to a circuit court of another county upon a showing that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had. Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999). The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial. Id. In making a determination of the accused’s ability or inability to receive a fair trial, the trial court has an opportunity to observe witnesses and to make a determination as to whether or not a particular mindset or prejudice pervades the entire county. Id. We will not disturb the finding of the trial court in an absence of an abuse of discretion. Id. There can be no error in the denial of a change of venue if the examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Singleton v. State, 337 Ark. 503, 989 S.W.2d 533 (1999). In addition, a defendant cannot show that he was prejudiced by the denial of a motion for change of venue if he failed to exhaust all of his peremptory strikes. Id.
Prior to trial, Montgomery filed a motion for change of venue, based on “his own personal knowledge that a black person will not be treated fairly in Paragould.” He also submitted identical affidavits from a number of persons who stated that they did not believe that a black person would be treated fairly in Paragould.
At a hearing on Montgomery’s motion, Trichia Dunn, Montgomery’s fiancee, testified that she lived in Trumann, in Poinsett County, and had never lived in Greene County. Dunn is white, and Montgomery is African-American. Dunn stated that when Montgomery was arrested, Officer Volner asked her why she “would want to be with a nigger” who got her into trouble. Dunn stated that Volner made it clear to her that he did not approve of her relationship with Montgomery. Dunn also stated that a little boy she saw in the courthouse lobby said “nigger, nigger, nigger,” when he saw Montgomery. The boy’s grandmother apologized to Montgomery and Dunn. On cross-examination, Dunn testified that she believed that Volner’s com ment was representative of other citizens of Greene County, even though she had never lived there and Volner had since been dismissed by the police department and had moved to Crossett.
Ricky Hishaw, a white male, testified that he lived in Greene County from 2000 to 2005. He stated that Paragould was known as a place where African-Americans are “not welcome a lot,” and that he did not think Montgomery could get a fair trial in Paragould. When asked if he knew of specific instances where African-Americans had been mistreated in Greene County, Hishaw stated that he did not. He testified that some persons “backed off’ from him when they learned that he had black friends. He also stated that he had seen “rebel” flags on vehicles in Greene County; however, he admitted on cross-examination that he had seen such flags on vehicles in other counties as well. Hishaw also recounted that he had heard rumors of a sign in town warning African-Americans to leave before sundown, but he had never seen the sign, nor did he have personal knowledge of the existence of the sign.
After hearing testimony, the circuit court concluded that Montgomery had failed to prove that the mindset of the general population of Greene County was such that an African-American could not receive a fair trial. Montgomery contends that the circuit court should have granted his motion for change of venue because he presented proof that there was countywide prejudice against black people in Greene County, and because the State called no witnesses to rebut the testimony of Dunn and Hishaw. As previously noted, the burden is on the defendant to show that a fair trial cannot likely be had in the county. See, e.g., Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). The State is not required to rebut the defendant’s testimony. The issue is whether a defendant presents sufficient proof.
The State contends that the circuit court was within its discretion to find that Montgomery had failed to show that it would be impossible to select an impartial jury in Greene County. The State argues that neither of Montgomery’s witnesses demonstrated a general knowledge about the state of mind of inhabitants of Greene County or of prejudice existing throughout the county to such an extent that a fair trial could not be had. In support of this argument, the State points out that Dunn had never lived in Greene County, and that she related stories concerning only two persons: a police officer who no longer lived in Greene County and a young boy who was in the courthouse. The State contends that, as unfortunate as the two instances Dunn cited were, they did not prove that racial prejudice existed in Greene County to such an extent that an impartial jury could not be seated. As to Hishaw’s testimony, the State contends that, while Hishaw testified that it was known that blacks were not welcome in Greene County, he could cite no specific instance of mistreatment against African-Americans based on their race. The State’s argument is well taken. We hold that the circuit court did not abuse its discretion in denying Montgomery’s motion for change of venue.
Further, the State points out that jury selection was not included in the record on appeal, so it is not known how the jurors responded to the questions they were asked, if Montgomery exhausted his peremptory strikes, or if he objected to the jury that was selected to hear the case. The burden of providing a record sufficient to demonstrate that reversible error has occurred is upon the appellant. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Here, in the absence of such a record, Montgomery has failed to show that he did not receive a fair trial.
Denial of Motion to Suppress
Montgomery argues that the circuit court erred in denying his motion to suppress a statement he gave to Officer Volner because Volner obtained the statement by making false promises to him. In Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005), we stated:
We note at the outset that 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. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In order to determine whether a waiver of Miranda rights is voluntary, we look to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. When we review a trial court’s ruling on the voluntariness of a confession, we make an independent determination based on the totality of the circumstances. Id.
A statement induced by a false promise of reward or leniency is not a voluntary statement. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. Id. For the statement to be involuntary, the promise must have induced or influenced the confession. Id.; Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), overruled on other grounds in Grillot, 353 Ark. 294, 107 S.W.3d 136. Furthermore, the defendant must show that the confession was untrue, because the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is, in fact, innocent. Id. In determining whether there has been a misleading promise of reward or leniency, this court views the totality of the circumstances and examines, first, the officer’s statement and, second, the vulnerability of the defendant.
Williams, 363 Ark. at 404-05, 214 S.W.3d at 834-35.
The evaluation of the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant’s custodial confession is for the trial judge to determine, and this court defers to the position of the trial judge in matters of credibility. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006). Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings. Id.
Both Officer Volner and Montgomery testified at the suppression hearing. As previously noted, Montgomery was arrested at Sheridan’s residence after Montgomery and others arrived with methamphetamine. Montgomery was taken to the police department, where Volner interviewed him the' next day. Volner read Montgomery the Miranda rights at 12:37 p.m. Volner testified that he and Montgomery talked after he read Montgomery his rights, but before he began recording the interview. The recording did not begin until 2:35 p.m. According to Volner, he told Montgomery that if Montgomery were honest and helpful, he would include that in his report. Volner also testified that he did not threaten Montgomery in any way. In his statement, Montgomery admitted that he possessed methamphetamine and had intended to deliver it to Sheridan.
On cross-examination, Volner testified that Montgomery was working for someone who went by the name No Limit and that Montgomery offered to help Volner find No Limit. Volner stated that he told Montgomery that “any cooperation” on Montgomery’s part “could help him down the road.” Further, Volner explained that he would “tell [Montgomery’s] defense counsel ... or the prosecutor any cooperation that he did, but I couldn’t make any promises because I don’t quite have the title of the Prosecuting Attorney or a Judge.” Volner denied that he had promised Montgomery he would serve no jail time. He also denied that he had threatened to set Montgomery’s bond at $1 million if he did not give a statement.
Montgomery testified that Volner promised him probation if he gave a statement, and threatened him with a $1 million bond so that he “wouldn’t see daylight again” if he failed to cooperate. Montgomery stated that he was fearful of staying in jail because he had overheard racist comments by other inmates. Further, he stated that he did not give his statement voluntarily. Montgomery stated that he was willing to do whatever he had to do to get out of jail, and that he would not have given a statement if Volner had not made him a promise and threatened him.
After hearing testimony from both Volner and Montgomery, as well as the arguments of counsel, the circuit court denied the motion to suppress. The circuit court found that Montgomery’s statement was voluntary and that it was not induced by a threat or promise of reward. In addition, the circuit court stated that it did not find credible Montgomery’s testimony that he was induced to make a statement by a promise of leniency or by threats from Officer Volner. At issue in this case was the conflict between the testimony of Montgomery and Volner regarding an alleged promise of leniency and an alleged threat regarding the amount of Montgomery’s bond. We defer to the superiority of the trial judge to evaluate the credibility of witnesses who testify at a suppression hearing. Holland v. State, 365 Ark. 55, 225 S.W.3d 353 (2006). We will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id. We cannot say that the circuit court abused its discretion in denying Montgomery’s motion to suppress.
Admission ofTape-Recorded Telephone Conversations
At the pretrial hearing on Montgomery’s motion to suppress, Officer Volner testified that he recorded several telephone conversations between Montgomery and Sheridan. The deputy prosecutor stated that a subpoena had been issued for Sheridan, but that his whereabouts were unknown and the subpoena had not been served. He further stated that Volner would testify that Sheridan had agreed to help arrange a drug buy with Montgomery by using Sheridan’s cell phone while he was at the police department. At trial, the State called Jerome Lewis, who was in the car with Montgomery at the time of the phone calls with Sheridan. Lewis testified that he did not “know” Sheridan prior to that day, but that he had previously heard Sheridan’s voice. He stated that he recognized Sheridan’s voice on the tape, adding, “I never forget a voice.” Lewis further testified that, as they drove to Paragould, Montgomery spoke to Sheridan on his cell phone about getting some money. Lewis stated that he had listened to the recordings of the telephone conversations and that both Montgomery’s and Sheridan’s voices were on the tapes. At that point, the tapes were played for the jury. After listening to the tapes, Lewis identified the voices on the tapes as those of Montgomery and Sheridan.
On appeal, Montgomery argues that the circuit court erred in admitting the tapes in violation of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. The following section of the Act is pertinent to this issue:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
18 U.S.C. § 2511(2)(c).
Montgomery argues that, because neither he nor Sheridan testified at trial, there is no evidence that either of them consented to having their telephone conversations recorded. As such, he contends that the recordings were inadmissible. We disagree with Montgomery’s assertion that there was no evidence of consent. Volner testified that Sheridan agreed to cooperate and initiate phone calls to Montgomery in an attempt to set up a controlled delivery of methamphetamine. It appears that Montgomery is arguing that a recording is admissible only if one of the parties to the communication expressly testifies that he or she consented to the recording.
No appellate court in this state has specifically addressed the issue. In Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987), the court of appeals rejected the appellant’s argument that the trial court improperly admitted the transcripts of telephone conversations into evidence because the interception of those conversations was unlawful under 18 U.S.C. § 2511 (1982). The appellant contended that neither he nor the police informant consented to the taping of their conversations. The court of appeals noted that the evidence on the issue of consent was conflicting: at the suppression hearing a police officer testified that the informant had consented to the taping, but at trial the informant stated that his consent was not voluntarily given. Concluding that the question of consent turned upon the credibility of witnesses, the court of appeals deferred to the superior position of the trial judge and held that the transcripts were properly admitted into evidence.
In Fields v. State, 81 Ark. App. 351, 101 S.W.3d 849 (2003), the court of appeals inferred that a prosecutor who was investigating a crime consented to the recording of his telephone conversation because the other party to the conversation testified that he entered the conversation with knowledge that he was speaking with an official investigating a crime, and that he assumed that such a conversation would be recorded. Therefore, the court of appeals held that consent can be inferred from circumstances surrounding the communication.
Some courts have held that the unavailability of a consenting party to a conversation does not prevent proof of consent from being demonstrated by other means. See, e.g., United States v. Gladney, 563 F.2d 491 (1st Cir. 1977) (holding that absent any indication of coercion, a government agent’s testimony that an informer who was unavailable for trial had consented to having a telephone conversation recorded was sufficient for the recording to be admitted); United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973) (holding that an informer’s consent to the monitoring or recording of a telephone conversation is incidental to his decision to cooperate with law-enforcement officers and that it will normally suffice for the government to show that the informer went ahead with a call knowing that the officers were present); United States v. Traficant, 558 F. Supp. 996 (N.D. Ohio 1983) (finding that the testimony of an FBI agent was sufficient to show that an unavailable informant consented to the recording).
In United States v. Edmond, 718 F. Supp. 988 (D.C. 1989), where consent to recording was shown via the testimony of police officers and agents of the Drug Enforcement Administration regarding circumstances surrounding the taping of conversations, the court rejected the defendants’ contention that the court could not evaluate the question of consent in a meaningful way without hearing from the informants themselves. The defendants argued that, because the court heard only from the law enforcement officers who supervised the recordings, the court could not appreciate the pressures which led to the informants’ “consent.” The court disagreed, stating:
This argument misunderstands the test for “consent” in the wiretap context, and the evidentiary principles that flow from that standard. The substantive test for consent is not, as the defendants’ argument would suggest, similar to that used to gauge a defendant’s waiver of a constitutional right. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973) (test for consent in the constitutional context). Rather, the test for consent in the wiretap context is considerably less rigorous: an individual need only proceed despite his or her understanding that the conversation is being recorded. See United States v. Fuentes, 563 F.2d 527, 533 (2d Cir. 1977) (“[i]t will normally suffice [to prove consent] for the government to show that the informer went ahead with a [conversation] after knowing what the law enforcement officers were about”) (quoting United States v. Bonanno, 487 F.2d 654, 658-59 (2d Cir. 1973))....
This substantive standard both informs the nature of the evidence that will be adequate to address a motion to suppress, and, as applied in this case, makes clear that the defendants’ motion should be denied. The lenient substantive standard permits proof by circumstantial evidence. As articulated by Judge Friendly in Bonanno, the lower substantive standard reflects the fact that, unlike consent to a search, an informer’s consent to a wiretap does him or her no additional harm: it is merely “an incident to a course of cooperation with law enforcement officials on which he has ordinarily decided some time previously and entails no unpleasant consequences to him.” 487 F.2d at 658. Thus, testimony regarding consent is sufficient if it shows that, in fact, the informer’s actions were taken in furtherance of the “course of cooperation.” Testimony of this type is nearly analogous to the testimony of a witness to a physical event, such as an automobile accident. In this context, the occurrence of that event — the perpetuation of the course of cooperation — can easily be shown by circumstantial evidence from the agents who witnessed the consent. Testimony from the informants themselves, while perhaps helpful, is not required.
Edmond, 718 F. Supp. at 992-93.
Here, even though Sheridan could not be located by the time of Montgomery’s trial, Volner testified that Sheridan had agreed to cooperate with the officers and called Montgomery at Volner’s discretion and in his presence. While it is clear that 18 U.S.C. § 2510 et seq. requires proof of consent, nothing in the statute indicates that consent can be shown only by the direct testimony of one of the parties to the recorded communication. We agree with the State’s contention that Sheridan’s decision to make the calls in the presence of officers, while obviously aware that the calls were being recorded, is sufficient evidence that he consented to have them recorded. Under the facts of this case, it was not necessary for either Sheridan or Montgomery to testify in order to show that either of them consented to the recordings. Thus, Montgomery fails to provide a basis for excluding the recordings pursuant to 18 U.S.C. § 2511.
Montgomery also argues that the recorded conversations were inadmissible as hearsay and that the admission of the tapes violated his constitutional right to confront witnesses as guaranteed by the Sixth Amendment to the United States Constitution. As pointed out by the State, Montgomery does not explain how the conversations are hearsay or cite any provision of the hearsay rules that the tapes violated. Nor does he explain how his right to confront witnesses was violated by the admission of the tapes. This court does not address arguments that are not supported by authority or convincing argument. See, e.g., Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004).
Entrapment
Montgomery argues that the circuit court erred in rejecting his proffered instruction on the defense of entrapment. Arkansas Code Annotated § 5-2-209 (Repl. 2006), provides:
(a) It is an affirmative defense that the defendant was entrapped into committing an offense.
(b)(1) Entrapment occurs when a law enforcement officer or any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense.
(2) Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
Our law is well established that, if a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).
At a hearing just before the trial began, the deputy prosecutor noted that Montgomery had indicated that he wished to raise the defense of entrapment. Counsel for Montgomery replied, “Judge, we’re not going to admit that we committed this offense. So, if that in essence waives my entrapment defense, so be it. But we certainly don’t admit that we committed this offense.” At the close of the State’s case-in-chief, Montgomery asked the court to instruct the jury on entrapment. The circuit court declined to instruct the jury on entrapment, finding that Montgomery had waived an entrapment defense prior to trial and that it was not fair to the State for Montgomery to attempt to raise the defense after the State had rested. We agree. It is clear from Montgomery’s counsel’s testimony that the defense of entrapment was waived prior to trial. We hold that the circuit court did not err in denying Montgomery’s request to submit a jury instruction on entrapment.
Affirmed.
The town of Paragould is located in Greene County. Though Montgomery argues that he cannot have a fair trial in Paragould, for the purpose of a change of venue, he must demonstrate that the minds of the inhabitants of the county are so prejudiced that he may not have a fair trial.
In fact, Montgomery makes no argument that the jury that was ultimately seated was biased against him. | [
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Donald L. Corbin, Justice.
Appellant Randy Melvin Bruce appeals the order of the Poinsett County Circuit Court denying his motion to suppress photographs, computer disks, 8-millimeter films, and VHS tapes seized from his home. Bruce entered a conditional plea of guilty to one count of rape, pursuant to Ark. R. Crim. P. 24.3(b), and was sentenced to a term of forty years’ imprisonment in the Arkansas Department of Correction. On appeal, he now argues that the trial court erred in denying his motion to suppress evidence on the basis that it was obtained in violation of his constitutional rights, as a result of his wife searching his things and turning them over to law-enforcement officers. Additionally, Bruce argues that an officer’s action of viewing the materials prior to the issuance of a search warrant also constituted an illegal search. We find no error and affirm.
In the early morning hours of May 22, 2005, Investigator Joey Martin of the Poinsett County Sheriff s Office received a call requesting that he go to a home on Raby Road to investigate items discovered by Tomasina Bruce, Appellant’s wife, that she described as child pornography. When Investigator Martin arrived at the home, Mrs. Bruce handed over several items that she said belonged to her husband. The items included nude photographs of Mrs. Bruce’s granddaughter and great-niece. Mrs. Bruce also turned over some VHS tapes, 8-millimeter films, and computer disks. Mrs. Bruce told Investigator Martin that she thought her husband was having an affair, so she searched the house and found these items that she believed Bruce had hidden from her. According to Mrs. Bruce, she located the majority of the items on a shelf in a closet located in a home office, while the computer disks were sitting atop a gun safe in the same room.
When Investigator Martin returned to his office, he viewed the materials and thereafter sought and received a search warrant. In his affidavit for the warrant, Investigator Martin detailed that most of the tapes turned over by Mrs. Bruce revealed nude pictures of Mrs. Bruce’s granddaughter and grandson. In addition, he stated in the affidavit that two of the 8-millimeter films showed Bruce exposing himself to the grandchildren and penetrating the granddaughter with his finger and penis.
Bruce was subsequently arrested and charged on July 27, 2005, by felony information, with fifty counts of engaging a child in sexually explicit conduct, fifty counts of pandering-possessing material depicting sexually explicit conduct involving a child, fifty counts of employing a child under the age of seventeen in a sexual performance, two counts of rape, and two counts of sexual assault in the second degree. On September 1, 2005, he filed a motion to suppress the photographs, tapes, films, and computer disks, arguing that the evidence was seized as the result of an unlawful search and seizure.
At a hearing on the motion to suppress held on November 10, 2005, Bruce argued that he had a reasonable expectation of privacy in his house and that Mrs. Bruce admitted that she was snooping through his things when she discovered the photographs and tapes. According to Bruce, his wife did not have the authority to search his personal items or to consent to a search of his items by Investigator Martin. The State countered that Bruce had no reasonable expectation of privacy in the items searched, as they were kept in a doorless closet in a room sometimes used by Mrs. Bruce. The State further argued that Mrs. Bruce had both apparent and actual authority to consent to the search by authorities. The trial court agreed with the State, ruling that Mrs. Bruce was not a state actor when she searched her husband’s things. The court further ruled that Mrs. Bruce had the authority to turn over the items she discovered and that Investigator Martin’s actions of viewing the tapes and computer disks did not constitute a search.
After the trial court denied his motion to suppress, Bruce entered a conditional plea of guilty to one count of rape in violation of Ark. Code Ann. § 5-14-103 (Supp. 2003). He was sentenced as stated above and now pursues an appeal of the denial of his motion to suppress.
On appeal, Bruce argues that his wife could not consent to a search of his property, and because she lacked both apparent and actual authority to consent, the subsequent search of his items violated his rights under the Fourth Amendment to the United States Constitution and article 2, section 15, of the Arkansas Constitution. In addition, Bruce argues that Investigator Martin’s actions of viewing the materials turned over by Mrs. Bruce were an unlawful search conducted prior to his obtaining a search warrant and should be suppressed. Thus, according to Bruce, even if this court determines that Mrs. Bruce had apparent authority to turn his things over to law enforcement, the State exceeded the scope of the private search by viewing the materials and everything, except the four photographs, should have been suppressed.
The State counters that Bruce’s argument is procedurally barred on the basis that he failed to demonstrate how he was prejudiced by the admission of the evidence. In support of its argument, the State relies on Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000), where this court held that the appellant was not prejudiced by a denial of a motion to suppress where the statement he sought to have suppressed was never introduced at trial. We disagree with the State that Bruce’s argument is procedurally barred and note that its reliance on Ferguson is inapposite. Thus, we now turn to the merits of Bruce’s arguments.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances. See Dickinson v. State, 367 Ark. 102, 238 S.W.3d 125 (2006). This court reverses only if the circuit court’s ruling denying a motion to suppress is clearly against the preponderance of the evidence. Id.
We begin our review by noting that the trial court correctly determined that Mrs. Bruce was not acting as a state actor at the time she searched her husband’s belongings. In addressing a similar issue, this court has stated:
For a search to be implicated under our Criminal Code, the search must constitute an “official intrusion.” SeeA.R.Cr.P. 10.1(a) and Commentary to Article IV. “The search and seizure clauses are restraints upon the government and its agents, not upon private individuals.” Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968). The general corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. Such searches will not implicate the Fourth Amendment unless the search by the private party has been done at the request or direction of the government, or in some way has been a joint endeavor with the government. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989), citing to 1 LaFave, Criminal Procedure 3.1(h) (1984). Where a state official has no connection with a wrongful seizure, there is no basis for exclusion. Id.
Winters v. State, 301 Ark. 127, 130-31, 782 S.W.2d 566, 568 (1990).
Clearly, any argument by Bruce that his wife’s actions constituted an impermissible search is without merit, as she was not a state actor and there was no resulting constitutional violation. As such, Bruce’s argument that his wife lacked authority to turn the items she discovered over to the authorities is without merit. We next turn to Bruce’s argument that the police exceeded the scope of his wife’s search by viewing the films, tapes, and disks. We find no merit in this argument either.
Pursuant to Ark. R. Crim. P. 11.1(a), an officer may conduct searches and make seizures without a search warrant if consent is given to the search. Further, Ark. R. Crim. P. 11.2(c) provides that a person who, by ownership or otherwise, is apparently entitled to give or withhold consent may consent to such a search. Searches based on voluntary third-party consent can be considered reasonable. See United States v. Matlock, 415 U.S. 164 (1974). Under Matlock, however, for the consent to be valid, the party giving the consent must have “common authority” over the premises. Id. at 171. The determination of third-party consent, like other factual determinations relating to searches and seizures, must be judged against an objective standard. Hillard v. State, 321 Ark. 39, 44, 900 S.W.2d 167, 169 (1995) (quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)). The testis: “[W]ould the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Id. In the present case, the question is whether under the facts as he knew them, Investigator Martin believed that Mrs. Bruce had authority over the materials she turned over to him.
Investigator Martin testified that the home belonged to Bruce and his wife. He stated that the wife admitted that she was snooping through her husband’s belongings, searching for evidence of an affair and found the photos, tapes, and other items that she assumed belonged to her husband. Mrs. Bruce testified that she found the items in a room in the home she owned with her husband. She stated that she sometimes used the room and the computer in it. The majority of the items she found were on a shelf in a doorless closet in that room. According to Mrs. Bruce, she also found some computer disks laying on top of a gun safe in that same room.
In Matlock, 415 U.S. 164, 172 n.7, the United States Supreme Court commented:
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies.the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Applying this principle to the facts of this case it is apparent that Mrs. Bruce had common authority over the items she discovered in a part of their home jointly accessed and controlled by her.
This reasoning is in line with our previous decision in Hillard, 321 Ark. 39, 900 S.W.2d 167. In that case, the appellant was sharing an apartment with Amelia Anderson. The apartment belonged to Anderson’s mother, Betty Sue Webster. Officers investigating the appellant in connection with two murders sought and received permission from Anderson to search the apartment. During the search, officers discovered a duffel bag belonging to the appellant and inside found two guns. The appellant sought suppression of the guns, arguing that Anderson did not have the apparent or actual authority to consent to a search of his duffel bag. This court rejected that argument, noting:
In sum, the record reflects the state established that Anderson had common authority, permitting her to authorize the officers to search the premises. Concerning the scope of the consent given, both Anderson and her mother had common authority over the premises, and it is uncontroverted that they gave their unqualified and unrestricted consent to search the entire premises, including the room where Hillard’s duffel bag was found. Anderson clearly stated that she gave the officers the right to search Hillard’s as well as her things in the bedroom which they jointly shared. Whether Hillard actually authorized anyone to open or consent to the search of his bag is unimportant.
Id. at 44-45, 900 S.W.3d at 169-70.
Just as we decided in Hillard, the evidence here demonstrates that Mrs. Bruce had the authority to consent to an unrestricted search of the materials that she turned over to Investigator Martin. Our conclusion is further supported by a recent decision of the Indiana Supreme Court in Lee v. State, 849 N.E.2d 602 (Ind. 2006). There, the appellant and his fiancée lived in a house owned by the appellant’s mother. The appellant operated a photography studio in the basement of the house. When his fiancée discovered some VHS tapes in the basement, she viewed two or three of them and discovered a woman changing clothes and realized that the images were taken in the studio’s changing room. At that point, the fiancée took sixteen tapes to the local authorities. She told the officers that she lived in the house and that her fiancé had secretly recorded women undressing in the studio. Two of the officers then viewed several of the tapes.
On appeal, the appellant argued that the officers’ actions of viewing additional tapes constituted an impermissible search because he had a protected privacy interest in the tapes and none of the exceptions to the warrant requirement were applicable. In making his argument, the appellant relied on Walter v. United States, 447 U.S. 649 (1980), and United States v. Jacobsen, 466 U.S. 109 (1984). The Supreme Court of Indiana rejected the appellant’s argument, ruling that while the appellant held a cognizable privacy interest in the tapes, because the tapes were kept in a home he shared with his fiancée, she had actual authority over the tapes and therefore could consent to the search of those tapes. In reaching this conclusion, the court noted that Melissa shared the house with the appellant and had full access to all the rooms in the house, including the areas where the appellant kept the tapes. The court explained:
Actual authority does not turn solely on whatever property interest the third party may have in the property. It can arise from “mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171, 94 S.Ct. 988. This is explained on the ground that the consenting party could permit the search “in his own right” and also that the defendant “assumed the risk” that a co-occupant might permit a search. Id. See also 1 LaFave, supra at § 1.8(b), p. 237 (“when one subjects her property to the joint or exclusive control of another, she has thereby assumed the risk that the other person will turn that property over to the police and allow the police to examine it further.”) Accordingly, by living with Melissa and taking no steps to deny Melissa access to the tapes, David assumed the risk that Melissa would take the tapes to the police station.
Lee, 849 N.E.2d at 606 (footnote omitted).
This reasoning is certainly applicable in the instant case. Here, Bruce and his wife cohabitated in the home. Mrs. Bruce had complete access to the entire house, including the room where the items were found, as evidenced by her testimony that she sometimes used the room. Most importantly, Bruce took no steps to prevent his wife from obtaining the materials, other than hiding some of them on a shelf in a doorless closet.
We are further persuaded by the Indiana Supreme Court’s • distinction of Walter, 447 U.S. 649, now relied on by Bruce. In order to understand the crucial distinction, it is necessary to briefly explain this case. In Walter, a private party opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to law enforcement. Later, without obtaining a warrant, the law-enforcement agents obtained a projector and viewed the films. The Court found that because the private party had not actually viewed the films, the actions of the government in viewing them was a “significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.” Id. at 657.
In addressing the appellant’s argument regarding the applicability of Walter, the Indiana court concluded that the cases were inapplicable, as those cases involved private parties that had no authority to consent to the searches undertaken by the government actors. Likewise, our review of Walter makes it clear that Bruce’s reliance on this case is misplaced. This is not a case where the police exceeded the scope of a private party’s search. The case at hand is one where the police examined the materials given to them by a third-party who had authority to consent to a search of the materials.
Before leaving this point, we note that Bruce’s reliance on Runyan v. State, 215 F.3d 449 (2001), is also unavailing, as that case is distinguishable from the instant one. In Runyan, a husband and wife were divorcing. The wife, in retrieving some of her possessions from the marital home, discovered child pornography in various forms. The wife viewed some of the materials but turned over to authorities all the things she had found. Thereafter, the police conducted a more thorough review of many of the materials that eventually led to issuance of a search warrant. In determining that the police’s prewarrant search of the materials constituted an impermissible expansion of the wife’s search, the court stated that, “[t]he police could not have concluded with substantial certainty that all of the disks contained child pornography based on knowledge obtained from the private searchers, information in plain view, or their own expertise.” Id. at 464.
The court in Runyan, however, was not faced with a situation involving two co-habitating spouses who had joint authority over the premises. In Runyan, the wife and husband were divorcing, the wife no longer had access to the house, and, in fact, broke into the house at the time that the items were discovered. Thus, the spouse in Runyan had no authority, apparent or actual, to consent to the search of the materials. Accordingly, we cannot say that the trial court erred in denying Bruce’s motion to suppress the materials in this case.
Affirmed.
The remaining charges were dismissed. | [
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Jim Hannah, Chief Justice.
On October 4, 2002, the Sebastian County Circuit Court entered an order imposing Rule 11 sanctions upon appellant Oscar Stilley in favor of appellees University of Arkansas Fort Smith (UAFS) and the Fort Smith School District (FSSD). This court affirmed. See Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). Subsequently, UAFS and FSSD filed motions to enforce sanctions, alleging that Stilley had failed to comply with the circuit court’s order. Hearings were held on the motions and, on September 22, 2004, the circuit court entered an order directing Stilley to provide certain information concerning his finances that he alleged prevented him from paying the sanctions.
In October 2004, UAFS and FSSD filed motions for contempt, alleging that Stilley had failed to comply with the September 22 order. Stilley responded to the motion for contempt and, on November 19, 2004, Stilley filed a motion for recusal. The circuit court denied the motion for recusal by order signed that same day and entered November 22, 2004.
The circuit court held a hearing on UAFS’s and FSSD’s motions for contempt, and judgment was entered on January 18, 2005, finding Stilley in contempt. On January 21, 2005, Stilley filed a pleading entitled “Submission of Documents Demonstrating the Court’s Advocacy of Westark/UAFS.” Then, on February 1, 2005, Stilley filed a “Motion to Amend Findings of Fact and Law and for Additional Specific Findings of Fact and Law Pursuant to Rule 52.” The circuit court did not act upon the motion.
On appeal, Stilley argues: (1) that the circuit court erred in denying him a “competent court” at the trial court level and holding him in contempt without affording him a hearing upon his motion for recusal; (2) that he was denied due process when he was deprived of a competent court on appellate review in Parker v. Perry, supra, and is therefore still entitled to a rehearing before an Arkansas Supreme Court consisting of disinterested jurists; (3) that the circuit court erred in permitting appellees to reopen a case that had been closed by the mandate after an appeal, without a formal motion as required by Ark. R. Civ. P. 7(b); (4) that the circuit court erred in refusing to provide an attorney adequate notice and opportunity to defend on a specific charge of contempt; (5) that the circuit court erred in evading the requirements of due process for criminal contempt by couching a criminal contempt as a civil contempt, even though the sentence calls for a thirty-day incarceration, which the defendant cannot avoid by purging himself of any offensive conduct; (6) that the circuit court erred in incarcerating appellant for failure to pay a judgment under Rule 11, when there was neither a finding nor a rational basis for a finding that the failure to pay was occasioned by anything other than the inability to pay; and (7) that the circuit court erred in seizing 100% of appellant’s receipts, with 50% to be returned from time to time.
Subsequent to Stilley’s filing of his brief on appeal, appellees filed a motion to dismiss the appeal. We deny appellees’ motion to dismiss. As to Stilley’s arguments on appeal, we find no error and, accordingly, we affirm. Because this case involves matters previously heard by the supreme court and concerns matters of attorney discipline, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(5), (7).
Motion to Dismiss Appeal
As an initial matter, we address the merits of appellees’ motion to dismiss appeal. The order from which this appeal is taken was entered on January 18, 2005. On February 1, 2005, Stilley filed a motion to amend findings of fact and law and for additional specific findings of fact and law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure. The circuit court took no action on that motion, and pursuant to Rule 52(b)(1), it was deemed denied on March 3, 2005. Thereafter, Stilley filed his notice of appeal on March 28, 2005.
Appellees argue that, pursuant to Ark. R. App. P. - Civ. 4(a), since more than thirty days elapsed between January 18, 2005, the date of the entry of the order from which this appeal is taken, and March 28, 2005, the date of the filing of the notice of appeal, the instant appeal is not timely. Although Stilley filed a motion pursuant to Rule 52, appellees contend that the rule is not applicable to this case, and consequently, Stilley’s notice of appeal was not timely filed and the appeal must be dismissed for lack of jurisdiction.
Rule 4(a) provides that a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. However, upon the timely filing in the circuit court of a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), made no later than ten days after the entry of judgment, the time for filing the notice of appeal shall be extended for all parties. Ark. R. App. P. - Civ. 4(b). If the circuit court neither grants nor denies the motion within thirty days of its filing, the motion shall be deemed denied as of the thirtieth day, and the notice of appeal shall be filed within thirty days from that date. Id. Here, Stilley filed a Rule 52 motion on February 1, 2005, which was within ten days of the entry of the judgment on January 18, 2005.
Appellees’ argument is not that Stilley failed to file a timely Rule 52 motion; rather, they argue that Rule 52 is inapplicable because pursuant to Rule 52(a), “Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules.” The order appealed from in this case resulted from appellees’ filing of a motion for contempt. Appellees reason that since the findings of fact and conclusions of law are not required by the circumstances of this case, Stilley cannot use Rule 52 as a means for extending the time for appeal. We disagree. Notwithstanding the language in Rule 52 that makes findings of fact and conclusions of law unnecessary in decisions of motions, we have noted that, in some cases, it is the better practice for the circuit court to give an explanation of its decisions on motions. See Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). Moreover, there is no language in the rule that prohibits circuit courts from entering findings, nor is there a prohibition on requesting such findings.
Appellees also state that Rule 52 is inapplicable because it applies only to “judgments,” and the January 18 order is not a judgment because it does not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. In this case, the circuit court captioned the order as a “judgment.” Even if it is not technically a judgment, this court reviews ordinary contempt proceedings under the rules and statutes pertaining to appeals. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000); Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Appellees argue that, although a finding of contempt may be appealable under the proper circumstances, it is not converted into a “judgment” merely because it is appealable. We believe that a focus on the word “judgment” to deny a party the opportunity to request factual findings on an order of contempt would be elevating form over substance. In contempt cases, especially those such as the instant case where a party is facing potential incarceration, a party should be extended the opportunity to request findings from the circuit court.
Finally, appellees argue that Rule 52 is not applicable to this proceeding because its application is limited to pleadings of a “civil nature” by Rule 1 of the Arkansas Rules of Civil Procedure, and the order of January 18 is based on Stilley’s refusal to comply with the circuit court’s order of September 22, 2004, from which no appeal is pending, to provide it with certain information in connection with Rule 11 sanctions. Appellees state that the issue before the court in the instant case is the discipline of an attorney, and such a proceeding is not a civil proceeding; rather, it is a proceeding sui generis. We disagree. While the court has stated that disciplinary proceedings of attorneys are sui generis, we have not suggested that we intended for the term “disciplinary proceedings” to encompass any sanction the circuit court might impose. Rather, the term refers to proceedings before the Committee. See, e.g., Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000) (review of disbarment proceeding); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999) (same). See also Burnett v. Sup. Ct. Comm, on Prof'l Conduct, 359 Ark. 279, 197 S.W.3d 458 (2004) (noting that the Committee responded to a party’s res judicata argument by stating that the Committee is not bound by the rules of the court and is not required to strictly adhere to the rules of evidence and the rules of civil procedure because attorney discipline proceedings are sui generis). In sum, we deny appellees’ motion to dismiss appeal. We now turn to Stilley’s arguments on appeal.
Motion for Recusal
On November 19, 2004, Stilley filed a motion to recuse. The same day, Stilley filed a motion to continue a contempt hearing set for November 23, 2004, and in that motion he asserted a right to a hearing on his motion to recuse. In the motion to recuse, Stilley alleged that Judge Marschewski had a “substantial, direct, pecuniary interest” in the outcome of the litigation, that he had “demonstrated a deep seated personal and deep seated bias and prejudice,” and that Judge Marschewski denied a request to grant full medical expenses in an unrelated case. He further asserted that there were other instances of prejudice that he could cite but did not do so. No significant facts in support of these allegations were provided by Stilley in his motion to recuse.
In a November 22, 2004, order, the circuit court granted a continuance as to the contempt hearing to January 14, 2005, but denied the motion to recuse without a hearing. Stilley did not file a motion for reconsideration on his motion to recuse.
At the contempt hearing on January 14, 2005, Stilley asserted, for the first time, that Judge Marschewski had been a member of a UAFS committee that sought to obtain passage of the taxes at issue in Parker v. Perry. Stilley did not move for Judge Marschewski to recuse, nor did Stilley move to renew his motion to recuse. However, at that time, Judge Marschewski stated that he had no recollection of being a member of any such committee and invited Stilley to present any evidence he had on the issue. Stilley made no attempt to introduce any evidence on this issue at the hearing, nor did he ask the circuit court to allow the record to remain open so that he could introduce evidence at a later date. Stilley had ample time to secure the evidence, as the circuit court continued the hearing, at Stilley’s request, from November 22, 2004, to January 14, 2005.
At the close of the hearing, Judge Marschewski stated that the matter was being taken under advisement, and that a decision would issue by Monday or Tuesday of the following week, or in other words, by Tuesday, January 18, 2005, at the latest. Clearly, Judge Marschewski expected Stilley to present any evidence he had prior to taking the matter under submission on January 14, 2005. Even if Stilley believed that Judge Marschewski offered to consider any evidence introduced after the hearing, he certainly knew he had to present it to the court before Tuesday at the latest. Nevertheless, Stilley made no attempt to offer evidence prior to the judgment issuing on Tuesday, January 18, 2005.
Further, the judgment contains no mention of any motion to recuse brought by Stilley at the January 14, 2005, hearing. Thus, while Stilley made no specific motion to recuse on January 14, 2005, even if Judge Marschewski considered the matter, Stilley failed to obtain a ruling. Failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Pro-Comp Mgmt., Inc. v. R.K. Enters., 366 Ark. 463, 237 S.W.3d 20 (2006).
We note, however, that Stilley attempted yet again to raise the issue of Judge Marschewski’s supposed committee membership on January 21, 2005, by way of a pleading entitled, “Submission ofDocuments Demonstrating The Court’s Advocacy For Westark/UAFS.” Attached to the pleading is a June 13, 2001, UAFS web posting listing Judge Marschewski as one of a number of “area leaders” who were to “lead the efforts of citizens, students, college faculty and staff in providing information to the voters, who will determine whether Westark College becomes a four-year university.” The article indicates that a 1/4 cent sales tax would result if voters made Westark a four-year college. The second item attached to the pleading is a Wednesday, June 20, 2001, newspaper article from The Times of Fort Smith regarding ethics and advocacy of Westark supporters. Judge Marschewski is not mentioned in the article. The January 21, 2005, pleading includes no motion, does not seek reconsideration of the order entered on January 18, 2005, and makes no attempt to introduce the attached items into evidence. It asks the circuit court to do nothing with respect to recusal. In that regard, it is a nullity. Thus, we may not consider the “Submission of Documents Demonstrating The Court’s Advocacy For Westark/UAFS.”
Finally, on February 1, 2005, Stilley filed a Motion to Amend Findings of Fact and Law and For Additional Findings of Fact and Law Pursuant to Rule 52. Stilley states in his motion, among other things: “Does the Court find that it was never a member of a committee or other body charged with promoting a tax for Westark College, now UAFS? If so, are the documents submitted to the Court suggesting that this was the case simply erroneous?” As noted, the January 18, 2005, order makes no reference whatever to the issue of recusal, and Stilley made no request in his Rule 52 motion for a finding on recusal. Rather, Stilley asks the circuit court to respond to his pleading entitled, “Submission ofDocuments Demonstrating The Court’s Advocacy For Westark/UAFS,” which we have already found to be a nullity, and those documents were not introduced into evidence. The circuit court bore no obligation to respond to that pleading. There is nothing for this court to review on this issue or any other issue relating to recusal that arises after the denial of the November 19, 2004, motion to recuse.
As already noted, Stilley argues that the circuit court erred when it denied his November 19, 2004, motion to recuse without a hearing. According to Stilley, there is a rule that a hearing must be held any time a motion for recusal is filed and a request for a hearing is made. He is incorrect.
A judge is presumed to be impartial. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). The party seeking recusal must demonstrate bias. Id. A hearing is necessary where requested, see Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998), and where there is more than a conclusory allegation that ajudge is biased or otherwise subject to recusal. See, e.g., City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Stilley’s motion was devoid of any facts supporting his assertion that Judge Marschewski should recuse. It raised no issue of fact or law to be considered in a hearing and was properly disposed of by summary denial. The circuit court did not abuse its discretion in denying Stilley’s motion to recuse. Further, the circuit court did not abuse its discretion in denying Stilley’s request for a hearing on the motion to recuse. There is no requirement that a hearing be held every time a litigant files a motion to recuse and asks for a hearing.
Recusal of Supreme Court/Recall of the Mandate
Stilley argues that in the Parker v. Perry case, he was deprived of a competent court on appellate review, and is therefore entitled to a rehearing before an Arkansas Supreme Court composed of disinterested jurists. He requests that this court recall the mandate in Parker v. Perry and reinstate his complaint. After submitting his brief on appeal, Stilley filed a separate motion to recall mandate and remand for reinstatement of the complaint in the previous appeal. That motion, which raised the same arguments as are raised in his brief, was denied by this court on May 18, 2006. Having already disposed of these arguments in our denial of the motion, we need not address them on appeal.
Ark. R. Civ. P. 7(b)
Stilley argues that the circuit court erred in permitting appellees to reopen a case that had been closed by the mandate after an appeal, without a formal motion as required by Ark. R. Civ. P. 7(b). Stilley states that appellees filed a “notice of noncompliance,” which neither purported to be a motion nor set forth the relief sought, in violation of Rule 7(b). That rule provides:
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) All motions required to be in writing and any responses and replies shall include a brief supporting statement of the factual and legal basis for the motion, response, or reply and the citations relied upon. Any supporting affidavits shall be served with the motion, response, or reply. Failure to satisfy these requirements shall be ground for the court’s striking the motion, response, or reply. The court is not required to grant a motion solely because no response or brief has been filed.
FSSD filed a notice of noncompliance on July 29, 2004. Thereafter, UAFS filed a motion to enforce sanctions on August 4, 2004, and a motion for contempt on October 14, 2004. UAFS contends that the instant matter resulted from the filing of those motions and that both motions comply with Rule 7(b). We agree. In both of those motions, UAFS explained how Stilley had failed to comply with the court’s prior orders and requested that the circuit court determine whether Stilley should be held in contempt. Stilley’s argument that the case cannot be “reopened,” and that the circuit court had no jurisdiction to create a “new case” and incarcerate him is without merit. It is within the circuit court’s jurisdiction to enforce a previously entered order.
Notice and Opportunity to Defend on Contempt Charge
Stilley next argues that the circuit court erred in refusing to provide him notice and an opportunity to defend on a specific charge of contempt. He alleges that no one contends that any contempt was committed in the circuit court’s presence, and that he respectfully and repeatedly demanded that he be given notice of the specific acts thought to be unlawful. The record reveals that UAFS’s motion to enforce sanctions, filed on August 4, 2004, stated that Stilley failed to pay Rule 11 sanctions, which had been affirmed on appeal by this court. The motion requested the circuit court to determine if Stilley’s refusal to pay was contemptuous behavior and if so, determine what would be the appropriate remedy. The brief that was filed in support of the motion mentioned jail as a possible remedy and pointed out that the burden would be on Stilley to show that he did not have the ability to comply with the circuit court’s order for payment of the sanctions. Stilley filed no response to UAFS’s motion of August 4, 2004, and a hearing was held on UAFS’s motion on September 14, 2004. Stilley appeared and testified at the hearing. On September 22, 2004, the circuit court entered an order directing Stilley to file case reports and other detailed information so that the circuit court could evaluate his ability to pay. In addition, Stilley was ordered to deposit fees and gifts into the registry of the court, and the clerk of court was ordered to distribute 50% of any such deposits on the first and fifteenth day of each month to Stilley and to distribute the other 50% to UAFS and FSSD. Stilley was required to provide copies of his federal income tax returns, to file a schedule of assets, list transfers of real and personal property to relatives, notify the court and counsel of any settlements in his cases, and provide detailed information about a $500,000 fee he acknowledged receiving but which he claimed to have lost immediately upon receipt.
On October 14, 2004, UAFS filed its motion for contempt citation. In the motion, UAFS stated that Stilley had failed to comply with any of the provisions of the order of September 22, 2004, and requested the circuit court to hold a hearing to require Stilley to show cause why he should not be held in contempt for failure to comply with the order and to impose appropriate sanctions if the court determined that Stilley was in contempt.
On January 14, 2005, a hearing was held in response to appellees’ motions. Stilley appeared and testified concerning his defenses to the motions and stated that he had received copies of the motions prior to the hearing. The following exchange then took place:
Stilley: I object to proceeding on the inherent powers, because I’ve been given no notice.
The Court: You’ve had ample notice. You know exactly what is transpiring, and this is another attempt at delay. How much time do you need to prepare for this hearing, Mr. Stilley?
Stilley: That depends on the scope of the hearing. I’m prepared to proceed today. If the scope of the hearing is broadened beyond what was stated in the hearing, I’d have to see what the actual charge was before I could say how much time I needed to prepare.
The Court: What do you mean what the theories are? The theory is whether or not you’re in contempt for not obeying the Court order.
Stilley: Statutory power —
The Court: I have that right, Mr. Stilley. That’s inherent in the court • — •
Stilley: Are you saying this inherent power — is it a sua sponte?
The Court: It’s the inherent power I have in the court. I’m putting you on notice right now. Do you need additional time to prepare?
Stilley: I am prepared.
The Court: I’m not going to be bound by the statutory limit, Mr. Stilley.
Stilley: I think we’re at an impasse here. I — and that’s what I’m trying to do here today.
The Court: I am prepared to give you a continuation if that is your representation to me.
Stilley: I’m not prepared to proceed on the inherent power of contempt.
The Court: How much time do you need to be prepared, so you could be fully prepared and make a representation on why you have disobeyed the Court’s order?
Stilley: I would need to see the pleading.
The Court: You’re not going to see anything else, Mr. Stilley. I have been in court with you —
Stilley: Till June.
The Court: That’s denied. This hearing will be continued for ten days, motion of the defendant. Be reset on my calendar. Mr. Stilley, I want to give you every opportunity to try and explain to me why you have disobeyed the order. That would include why you think the order is illegal; why you have not followed steps or procedures to comply, and come here and give me a reason why.
Stilley: Your Honor, if you’re continuing this in order to give me additional time, let me say this: Additional time is not going to do a bit of good, unless I have notice with strict compliance with the Rules concerning how long —
The Court: Well, I’m going to rescind that order. We’re going to go ahead with the hearing. I’ve tried to comply with you, Mr. Stilley, and I don’t think what the Court does is going to comply with you. So we’ll go ahead with the hearing. Make your record.
Stilley has failed to demonstrate that he did not have proper notice of the contempt charges against him. He testified that he had seen the motions. And, when the circuit court agreed to give him a ten-day continuance, Stilley stated that a continuance would not do any good unless the circuit court satisfied Stilley’s conditions. It was only then that the circuit court rescinded the continuance. Stilley can hardly complain now when he declined the circuit court’s offer to continue the hearing. This argument is without merit.
Due Process in Contempt Proceedings
Stilley argues that the circuit court evaded the requirements of due process for criminal contempt by couching a contempt as a civil contempt even though the sentence calls for a thirty-day incarceration, which the defendant cannot avoid by purging himself of any offensive conduct.
In the January 18, 2005, order, the circuit court found Stilley in contempt for violating the September 22, 2004, order to produce certain financial documents to demonstrate his inability to pay the Rule 11 sanctions. The circuit court sentenced Stilley to thirty days in jail and assessed a fine of $50 for each day after the entry of the order that Stilley continued to defy the order. Finally, the circuit court suspended the finding of contempt in the event that Stilley complied with the court’s order within five days of the entry of the order. In Ivy v. Keith, 351 Ark. 269, 279-80, 92 S.W.3d 671, 677-78 (2002), we stated:
Contempt is divided into criminal contempt and civil contempt. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of the private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. See Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) (“[CJriminal contempt punishes while civil contempt coerces.” (emphasis in original)).
In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988). Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. See id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593 (1947) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276-77.
In the instant case, while the circuit court suspended the sentence in the event that Stilley complied with the order within five days, it is clear from the plain language of the order that, once the sentence went into effect, Stilley had no opportunity to purge himself of the contempt. Thus, we agree with Stilley’s contention that the contempt is criminal and not civil; however, Stilley has failed to demonstrate error because the record shows that he was afforded due process in the contempt proceeding. Pursuant to Ark. Code Ann. § 16-10-108(c) (Repl. 1999), Stilley was entitled to notice of the accusation and a reasonable time to make a defense. It is clear from the record that Stilley was afforded the rights required under § 16-10-108(c). Fie acknowledged receipt of the motions, which explained how he had failed to comply with the September 22, 2004, order; he was given notice of the contempt hearing; and he was given the opportunity to present a defense at that hearing. Though the circuit court should have characterized the type of contempt in this case as criminal con tempt since Stilley did not have the opportunity to purge the contempt once he began serving the thirty-day sentence, the fact remains that Stilley was afforded the due process required under § 16-10-108(c).
Incarceration and Rule 11
Stilley argues that the circuit court erred in incarcerating him for failure to pay a judgment under Rule 11, where there was neither a finding nor a rational basis for a finding that his failure to pay was occasioned by anything other than his inability to pay. To support this proposition, Stilley cites Ivy, supra, where we held that holding a party in criminal contempt for not paying Rule 11 sanctions constituted a plain, manifest, and gross abuse of discretion. Ivy, 351 Ark. at 285, 92 S.W.3d at 681. Appellees correctly point out that the circuit court found Stilley in contempt for failing to comply with the September 22, 2004, order, which directed the filing of financial information. Stilley is simply wrong in stating that he was incarcerated for failing to pay Rule 11 sanctions.
Stilley goes on to say that there is no credible evidence that he could have paid the sanctions but chose not to pay. It was Stilley’s burden to prove he had the inability to pay, and it is clear from the record that he chose not to meet that burden, particularly in light of the fact that, in defiance of the court’s order, he failed to submit the financial documents to support his assertion that he could not pay.
Seizure of Assets
Finally, Stilley argues that the circuit court erred in seizing 100% of his receipts, with 50% to be returned from time to time, in violation of the Federal Consumer Protection Act. Stilley cites to no convincing authority and makes no persuasive argument to support his position. We decline to develop this point on appeal for Stilley. See, e.g., Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006).
Reconsideration of UAFS’s Motion for Contempt
Finally, UAFS requests that this court reconsider its December 15, 2006, motion for contempt, which this court denied without prejudice on February 2, 2006. We cannot say that Stilley’s conduct in this case rises to the level of contempt; therefore, we again deny UAFS’s motion.
Affirmed; motion to dismiss appeal denied; motion for contempt denied.
January 18,2005, fell on aTuesday. Excluding intermediate weekend days, see Ark. R. Civ. P. 6(a), the tenth day fell on February 1,2005. | [
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Per Curiam.
On December 29, 2005, a Petition for Disbarment was filed in this matter. On January 29, 2006, Respondent Paul E. Revels, by letter, acknowledged notice of this and set forth his desire to surrender his license. To date, no response has been filed by or for Mr. Revels, no signed Surrender Petition has been returned and filed, and he is in default under Ark. R. Civ. P. 55. Therefore, the allegations of the Petition are deemed admitted, and the proper sanction is disbarment. The name of Paul E. Revels of DeQueen, Arkansas, shall be removed from the registry of attorneys licensed by the State of Arkansas, and he is barred and enjoined from engaging in the practice of law in this state unless done pursuant to a law license-granted by another state or jurisdiction with the authority to authorize the practice of law and done in accordance with the rules of this state.
It is so ordered. | [
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Tom Glaze, Justice.
In this tort case, Allen Keith, an employee of McCormick Asphalt Paving and Excavation, Inc., was injured while working on a job site located on Interstate 40 in Johnson County. Keith eventually died from the injuries he sustained after an Ingersoll-Rand asphalt roller rolled forward and pinned him against another roller.
Appellant Janet Downen, Keith’s mother, filed a complaint on Keith’s behalf alleging that, prior to Keith’s death, the Gary Eubanks and Associates Law Firm had requested that McCormick Asphalt provide it access to the Ingersoll-Rand roller so that it could inspect the machine. The complaint further asserted that Michael Redd, an attorney for McCormick Asphalt, denied Downen’s attorneys’ request by a letter, wherein Redd explained that access to the roller would be denied until counsel with the Eubanks Firm was properly appointed by the probate court to represent Keith’s estate. The Downen complaint further reflected that Downen had been appointed administratrix of Keith’s estate, and she had already filed a wrongful-death lawsuit against Ingersoll, the manufacturer of the roller. During the discovery phase of that trial, Downen’s counsel learned the roller had been sold by McCormick Asphalt. Because the machine was no longer available, Downen claimed Keith’s wrongful-death lawsuit had been prejudiced.
Downen thereafter filed a complaint in Sebastian County Circuit Court against Redd, individually; his law firm, Smith, Maurras, Cohen, Redd & Horan, PLC; and McCormick Asphalt. Downen’s complaint alleged, among other things, that all the named defendants were liable for spoliation of evidence. Redd and his law firm filed a motion to dismiss, asserting that the complaint did not state a cognizable claim under Ark. R. Civ. P. 12(b)(6) because Arkansas does not recognize a claim for spoliation of evidence. The circuit court agreed and dismissed the spoliation claim as to Redd and his law firm. The circuit court then transferred the remaining spoliation claim against McCormick Asphalt to Franklin County Circuit Court. That court later entered an order dismissing all the claims against McCormick Asphalt, which specifically included the spoliation-of-evidence claim. Downen appeals that court’s order. Downen’s only point on appeal is that the Franklin County Circuit Court erred when it dismissed the spoliation-of-evidence-tort claim. We affirm the circuit court’s dismissal.
We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in plaintiffs favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
In Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000), our court refused to recognize a cause of action for first-party spoliation. In Goff, we defined spoliation as the intentional destruction of evidence. Here, the sole question on appeal is whether Arkansas will recognize a tort for intentional third-party spoliation. Downen contends that, absent a separate cause of action, third parties can destroy evidence with little or no consequence. Although they filed separate briefs, the appellees/defendants collectively submit that a third-party-spoliation-tort claim should not be treated any differently than a first-party-spoliation-tort claim.
It is necessary to first discuss our court’s decision in Goff v. Harold Ives Trucking Co., Inc., supra. In Goff, the court’s stated reason for rejecting a first-party spoliation tort was premised on the fact that courts can punish spoliators through other means. There, Ms. Goff, a motorist, was injured in an accident by a tractor-trailer rig driven by an employee of Harold Ives Trucking. Ms. Goff sued Harold Ives in federal district court. Sometime during the course of discovery, the Goffs learned that Harold Ives had either negligently or intentionally lost or destroyed some of its truck driver’s logs. Specifically, the logs, according to the Goffs, indicated the Harold Ives driver’s “hours of service,” or how long the driver had been on the road before the accident. The federal district court only permitted recovery for compensatory damages with respect to the underlying negligence claim, and, consequently, the Goffs voluntarily nonsuited the spoliation-of-evidence claim. Subsequently, the Goffs filed a suit in Pulaski County, alleging a sole claim for spoliation of evidence. The circuit court, however, dismissed the Goffs’ complaint. See Ark. R. Civ. P. 12(b)(6).
Relying heavily on the California Supreme Court’s reasoning in Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 954 P.2d 511, 74 Cal. Rptr. 2d 248 (1998), our court in Goff affirmed the Pulaski County Circuit Court’s dismissal of the complaint. We explained that there was essentially no utility in recognizing a new cause of action, as there are other sufficient avenues for relief without the creation of a new tort. First, the Goff court concluded that evidentiary inferences are permitted in such cases, wherein an aggrieved party can request that a jury be instructed to draw a negative inference against the spoliator. Second, we explained that other remedies were available for these cases, including discovery sanctions under Ark. R. Civ. P. 37(b), disciplinary sanctions against attorneys guilty of spoliating evidence, and the criminal sanctions for spoliation of evidence under Ark. Code Ann. § 5-53-111 (Repl. 1997). Finally, we noted that a strong policy consideration weighed against the adoption of a new tort. Specifically, we were concerned with the speculative nature of damages in these cases, as the question would go not only to the amount of damages caused by the destruction of the evidence, but also to the very existence of the injury. The California Supreme Court further explained this policy consideration as follows:
The elements of causation and damages, ... in the continuing absence of the spoliated evidence, would be nearly impossible to prove, and permitting a cause of action that necessarily would be based upon speculation and conjecture could burden the courts with claims that may be peculiarly productive of arbitrary and unreliable verdicts.
Temple Cmty. Hosp. v. Superior Court, 20 Cal. 4th 464, 470, 976 P.2d 223, 228, 84 Cal. Rptr. 2d 852, 857 (1999)(citing Cedars Sinai Med. Ctr., supra.)
The California Supreme Court has also considered and declined to recognize a third- party spoliation-of-evidence tort. Temple Cmty. Hosp., supra. In Temple, the California Supreme Court expanded its earlier holding in Cedars-Sinai Med. Ctr., supra. Specifically, in Temple, the plaintiff was burned by a fire in a facial operation when a tool ignited oxygen in the anesthesia mask. The plaintiff sued, among others, the manufacturer of the tool, but later learned that the hospital had destroyed the tool despite numerous attempts by plaintiff s counsel to preserve the evidence.
As in the case before us, the products-liability portion of the lawsuit in Temple had been prejudiced when the missing tool evidence could no longer be produced. In declining to recognize a third-party spoliation-of-evidence tort, the California Court gave the following reasons:
As we shall explain, many of the considerations that led us in Cedars-Sinai to decline to recognize a tort cause of action for spoliation apply with equal weight when the spoliation is committed by a third party. The doubtful benefit of the proposed tort remedy is outweighed by the prospect of a spiral of litigation giving rise to verdicts based upon speculation. In addition, it would be anomalous for a nonparty to be liable in damages, including punitive damages, for conduct that would not give rise to tort liability if committed by a party. We conclude that no tort cause of action will lie for intentional third party spoliation of evidence.
Temple Cmty. Hosp., 20 Cal. 4th at 466, 976 P.2d at 225, 84 Cal. Rptr. 2d at 854.
Reiterating this analysis in the above-cited quote, while Goff, supra, and Cedars-Sinai Med. Ctr., supra, concerned a first-party spoliation of evidence tort claim, many of the considerations that influenced us in those cases, along with the reasoning set forth in Temple Cmty. Hosp., supra, guide us to conclude that a third-party spoliation-of-evidence cause of action should not be adopted in this State. First and foremost, as explained in Temple Cmty. Hosp., supra, it is unreasonable for us to conclude that a nonparty can be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. Goff, supra. Moreover, as explained in Goff, we must be concerned with the speculative nature of damages in a case such as this. The question, much like that in a first-party spoliation-tort suit, goes not only to the amount of damages caused by the destruction of evidence (causation), but also to the very existence of the injury (damages). See Goff, 342 Ark. at 149, 27 S.W.3d at 390.
Notably, there are distinctions in the remedies afforded to victims of third-party spoliation and those afforded to victims of first-party spoliation. In the case of first-party spoliation, a victim has the evidentiary inference that can be used to bolster a theory against a spoliating party and the benefit of most of the discovery-sanctions under our rules of civil procedure. While these remedies are admittedly not available against third parties, third-party spoliation victims are not completely without recourse. For instance, a party can seek a court order directing preservation or a contractual agreement with the property owner. Under Ark. R. Civ. P. 45(b) (2006), a lawyer may subpoena a person to produce “tangible things” for inspection, and should the person fail to do so, Ark. R. Civ. P. 45(g) allows the court to use its contempt powers to compel the inspection. Rule 34(c) of the Arkansas Rules of Civil Procedure also provides for an independent action against a non-party for the production of evidence. Finally, criminal sanctions remain available under Ark. Code Ann. § 5-53-111 (Repl. 2005), and attorneys who are guilty of spoliating evidence are still subject to discipline under Rule 8.4 of the Model Rules of Professional Conduct.
Of course, there are some jurisdictions that have concluded that such a tort is cognizable. See Richard E. Kaye, The Effect of Spoliation of Evidence in Products Liability Actions, 102 A.L.R.5th 99 (2002). For instance, in Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001), an injured worker brought an action against her former employer for intentional (and negligent) spoliation of evidence when the worker learned that the employer had disassembled and replaced a conveyor belt that malfunctioned and caused the employee’s injuries. In deciding to recognize this tort, the New Mexico Supreme Court reasoned, “We based our recognition of this tort on our belief that the intentional destruction of potential evidence in order to disrupt or defeat another person’s right of recovery is highly improper and cannot be justified.” Coleman, 120 N.M. at 649, 905 P.2d at 189.
While New Mexico has adopted third-party spoliation as a separate tort, the Georgia Court of Appeals, in a case very much like this one before us, refused to recognize that tort in Owens v. American Refuge Sys., Inc., 244 Ga. App. 780, 536 S.E.2d 782 (2000). In the Owens case, Owens was injured on the job when a cap blew off a pressure tank. When Owens went to sue the manufacturer in a products-liability lawsuit, he discovered that the employer had destroyed the tank. He subsequently filed suit against his employer, a third party, for spoliation of evidence. The Georgia court, in declining to recognize a third-party spoliation tort claim, stated that a litigant already has traditional means of securing evidence available, including such matters as a court order directing preservation or a contractual agreement with the property owner. Id. See also Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987).
In light of Goff, we believe it would be inconsistent for us to hold that a third party, who is not a party to the underlying action, could be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. See Goff, supra. Furthermore, we cannot recognize a new tort as a means to deter third-party spoliation of evidence when the result of such a tort would create potentially endless litigation over speculative loss. A victim of third-party spoliation should seek a remedy in a means other than an individual tort claim.
Affirmed.
The underlying assertion to this products-liability lawsuit was that the roller was defective (it rolled forward even though Keith had activated the brakes).
Downen’s complaint does not indicate if the products-liability lawsuit was dismissed.
The appellees/defendants collectively argue that Downen was required to file a notice of appeal in Sebastian County Circuit Court, and, because she did not do so, we are without jurisdiction of that order. In fact, the Franklin County Circuit Court also opined in its order that Downen should have appealed from the Sebastian County Circuit Court order. However, any attempt made by Downen to appeal from the Sebastian County Circuit Court, absent an Ark. R. Civ. P. 54(b) certification, would have been dismissed because that order had not adjudicated all the outstanding claims. In other words, the Sebastian County Circuit Court’s order was not final, and, thus, not appealable. | [
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Per Curiam.
A judgment and commitment order entered November 15, 2004, reflects that appellant Jeffrey L. O’Connor, also known as Jeffery Lynn O’Connor, entered a plea of guilty or nolo contendere to two counts of rape and was sentenced to an aggregate sentence of 168 months’ imprisonment. Another judgment entered the same day confirms that the plea accepted by the trial court was nolo contendere or no contest.
Appellant timely filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37.1, alleging that he was entitled to relief because the trial court did not establish a factual basis for the plea, which appellant claimed violated his right to due process, and also because he received ineffective assistance of counsel. Following a hearing on the petition, the trial court entered an order denying the petition. The trial court found that appellant had waived his claim of ineffective assistance at the hearing and that there had been substantial compliance with Ark. R. Crim. P. 24.6 on the issue of the factual basis. Appellant now brings this appeal of that order denying postconviction relief.
Under our standard of review for a proceeding on a Rule 37.1 petition, this court does not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
Here, appellant asserts that he was entitled to relief because the prosecution presented the factual basis for the plea to the court, and appellant was never asked whether he agreed with the merits of those allegations. Appellant points out that he did question that recitation of facts and that there was a discussion between the court, appellant, and defense counsel concerning his right to challenge the evidence that would have been presented at trial. Appellant contends that there was no substantial compliance with Ark. R. Crim. P. 24.6 and his right to due process was thereby violated because he, personally or through counsel, had not stated either that he agreed with the recited facts, or that he did not contest the stated facts.
The State argues that appellant’s claim is not cognizable in a Rule 37.1 proceeding because it is a direct attack on the plea and is not fundamental error sufficient to render the judgment void. Alternatively, the State argues that the claim is without merit in that there was substantial compliance with Rule 24.6 because the trial court advised appellant it would accept the factual basis presented by the State if those facts were sufficient to establish the charges. While appellant contends that the State may not raise the argument that the claim here is not cognizable on appeal as it was not raised below, the case cited in support of that proposition, State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991), is not analogous. In Watson, the State, as appellant, attempted to couch an issue not raised below as a jurisdictional question on appeal. We determined that the issue was not, in fact, a question of jurisdiction.
Whether a claim is cognizable in a Rule 37.1 proceeding is similar to a jurisdictional issue, and we may raise the question sua sponte. The question of whether the trial court acted in excess ofits authority becomes a matter of subject-matter jurisdiction and may be raised sua sponte. See Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003) (question of whether or not trial court had jurisdiction to modify sentence). The State is not then prohibited from raising the issue on appeal; it is not a matter of a point not preserved for review.
It is true that a trial court’s failure to establish a factual basis for a guilty plea, in itself, is not so basic as to render a judgment of conviction a complete nullity. Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990). Yet, as appellant contends, this court has appropriately considered questions relating to the factual basis for a plea in the context of Rule 37.1 proceedings. See Pardue v. State, 363 Ark. 567, 215 S.W.3d 650 (2005) (per curiam); Parks v. State, 301 Ark. 513, 785 S.W.2d 213 (1990); Knee v. State, 297 Ark. 346, 760 S.W.2d 874 (1988); Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). A failure to comply with the procedural requirements of Rule 24.6 during the plea proceedings is not fundamental error so as to void the judgment, unless, as we noted in Pardue, that failure is such that the result was the plea was not entered intelligently and voluntarily. A claim that might otherwise be a direct attack on the verdict may be cognizable to the extent it indicates ineffective assistance of counsel. So, too, a claim of faulty procedure in the taking of a plea may be cognizable to the extent that it shows that the plea was not intelligently and voluntarily entered.
In Pardue, the appellant unsuccessfully argued that his failure to assent to the factual basis for the charges provided by the prosecutor at the plea hearing, in conjunction with other factors the appellant alleged, brought into question his capacity to enter a voluntary and knowing plea and required us to set aside his guilty plea. The appellant in Pardue further argued that his sentence was void because the prosecution had failed to present a factual basis for habitual criminal enhancement. We affirmed the trial court’s denial of postconviction relief because there was substantial compliance and no indication that the failure resulted in a plea that was not intelligently and voluntarily entered.
Here, appellant does not assert that his plea was not intelligently and voluntarily entered as a result of the alleged failure to comply with Rule 24.6. Nor does he claim that the factual basis asserted by the prosecution was not adequate to establish the charges or that appellant did not, in fact, understand what the evidence was that would have been presented at trial. He contends only that there was no substantial compliance with Rule 24.6 because the trial court did not inquire or receive confirmation that appellant agreed with the evidence as presented by the prosecution. However, appellant misconstrues the purpose of Rule 24.6, in addition to failing to show how any error in the procedure during the plea hearing resulted in the type of fundamental error that is cognizable in a Rule 37.1 proceeding.
The requirement of a factual basis for a plea does not require that the appellant be proven guilty, but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty if he elected to proceed to trial. Knee, 297 Ark. at 347, 760 S.W.2d at 875. A factual basis may be established by addressing the accused, the defense counsel, the prosecutor, or all three. Furr, 297 Ark. at 237, 761 S.W.2d at 162; see also Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993) (discussing Furr as analogous to waiver of jury trial). The purpose of the factual basis requirement is to prevent an accused from pleading guilty on the mistaken assumption that his conduct was unlawful when it was not. Parks, 301 Ark. at 515, 785 S.W.2d at 215 (citing Furr).
Appellant entered a plea of nolo contendere, and accordingly, he was not required to admit his guilt or that he committed the acts alleged by the prosecution in order to demonstrate knowledge that his conduct was unlawful. To satisfy the requirements of the rule, the trial court only had to determine that the prosecution could present sufficient evidence for a conviction in order to determine that there was substantial compliance with Rule 24.6, not that the defendant was in accord or agreement with that evidence. It was simply not necessary, under those circumstances, for appellant, who entered a plea of nolo contendere, to admit that he committed the acts as described.
Nor is it necessary that a defendant personally and fully understand how each element of the charge is satisfied by the evidence, so long as the trial court can determine that the defendant and his trial counsel have not mistakenly determined that those elements are satisfied. Even had appellant stated a cognizable claim, we cannot say that the trial court was clearly erroneous in holding that there was substantial compliance with Rule 24.6. Accordingly, we affirm the denial of postconviction relief.
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Robert L. Brown, Justice.
On April 28, 2006, Johnny Weaver filed a petition for qualification as an independent candidate for the office of membership in District Thirteen of the Arkansas House of Representatives. On May 2, 2006, the Elections Division of the Secretary of State notified Weaver that because his petition did not contain the required number of verified signatures, his name would not be placed on the ballot for the November 7, 2006 General Election.
On May 31, 2006, Weaver filed an action on behalf of himself and the African American petitioners in District Thirteen in the Phillips County Circuit Court against Charlie Daniels, in his official capacity as Secretary of State for the State of Arkansas as well as the Secretary of State’s office as a state entity. Weaver claimed that the Secretary of State’s office had violated the Arkansas Civil Rights Act of 1993 and the 1965 Federal Voters Rights Act, as amended, because its disapproval of Weaver’s petition was predicated on race. Weaver further complained that the Secretary of State used unfettered discretion and was arbitrary when reviewing signatures on petitions for independent candidates, which violated the Fourteenth Amendment’s proscription against the “arbitrary use of government power.” Weaver sought (1) a writ of mandamus to require determination of the validity of the signatures on his petition by expert examination and declaratory relief, (2) negative injunctive relief, and (3) determination of class certification.
On June 23, 2006, the appellants, Charlie Daniels as Secretary of State and the Secretary of State’s Office (hereinafter referred to jointly as “the State”), moved to dismiss the complaint. The State alleged that the Phillips County Circuit Court lacked subject-matter jurisdiction under Arkansas Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(3). The State also asserted that Weaver’s complaint should be dismissed for failure to plead facts upon which relief could be granted under Arkansas Rule of Civil Procedure 12(b)(6), and that Weaver was not entitled to a writ of mandamus because a writ of mandamus cannot be used to control the Secretary of State’s discretion.
On August 23, 2006, the Phillips County Circuit Court held a hearing on the State’s motion to dismiss. Despite the State’s objections, the circuit court allowed Weaver and Linda White, the Phillips County Probate Clerk, to testify concerning valid signatures by qualified voters, and the court accepted exhibits that were not part of Weaver’s complaint. On August 28, 2006, the circuit court entered an order, finding that the required number of eligible signatures by qualified voters were affixed to Weaver’s petition and directing the Secretary of State to place Weaver on the ballot for the November 7, 2006 General Election within ten days from the date of the order, which fell on September 7, 2006. The court also denied the State’s motion to dismiss. It is from that order that the State appeals. On September 13, 2006, this court expedited the appeal, pursuant to the State’s motion, and requested simultaneous briefs to be filed by September 19, 2006. Only the State filed a brief. This court also denied Weaver’s motion for the court to disqualify and the State’s motion for a stay of the mandamus order.
We first address the State’s contention that the Phillips County Circuit Court lacked subject-matter jurisdiction over this case. The State maintains that the relevant statutory authority for petitions and qualification for independent candidates like Weaver is found at Arkansas Code Annotated § 7-7-103 (Supp. 2005). Section 7-7-103(d) reads:
(d) The sufficiency of any petition filed under the provisions of this section may be challenged in the same manner as is provided by law for election contests, § 7-5-801 et seq.
Ark. Code Ann. § 7-7-103(d) (Supp. 2005).
The operable subsection of § 7-5-801 reads:
(d) The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.
Ark. Code Ann. § 7-5-801 (d) (Repl. 2000).
In the instant case, we note that the complaint failed to comply with the required timetable of § 7-5-801 (d). Specifically, Weaver was notified that his petition was not certified by letter from the Elections Division dated May 2, 2006. He did not file his verified complaint until May 31, 2006, which was nine days late. This court has held that failure to comply with the election-contest timetable is a matter of subject-matter jurisdiction. See Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003) (affirming dismissal of election-contest complaint for lack of subject-matter jurisdiction where verification of complaint was filed four days late). See also King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999) (affirming dismissal of election-contest complaint for lack of subject-matter jurisdiction).
Though we decide this case on the basis of subject-matter jurisdiction, it is also abundantly clear under state law that Phillips County was an improper venue for this case. See Ark. Code Ann. § 7-5-801(b) (Repl. 2000). Section 7-5-801(b) states that contests to certification shall be brought in Pulaski County when “any state office is involved.” See also Ark. Code Ann. § 16-60-103(3) (Repl. 2005) (all actions against state officers on account of their official acts must be brought in Pulaski County); Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000) (proper venue was Pulaski County under § 16-60-103(3) for suit against Secretary of State involving her official acts); Ark. Code Ann. § 16-106-101 (d) (Repl. 2006) (all actions against a state officer shall be brought in the county where that defendant resides).
Accordingly, we hold that the Phillips County Circuit Court did not have subject-matter jurisdiction to hear Weaver’s complaint, and we reverse and dismiss.
Reversed and dismissed.
The State had indicated that a Petition for Writ of Prohibition and Certiorari would be filed in this matter. A motion entitled “Motion to Supplement the Record on Appellants’ Appeal and Requests forWrits of Prohibition and/or Certiorari” was filed on September 7, 2006. Yet, the body of the motion does not contain a petition for writ of prohibition or certiorari and no other document purporting to be such a petition is in the filed record. | [
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Jim Hannah, Chief Justice.
Appellee Beadles Enterprises, Inc., is a hog-finishing operation owned by Wayne Beadles, Sr., and Wayne Beadles, Jr. This operation takes young hogs, feeds them until they attain a certain weight, and then sells them to slaughterhouses. Beadles makes its own hog feed, part of which contains soybean meal that is purchased from appellant Archer- Daniels-Midland Company (ADM). In April and May of 1997, Beadles purchased two shipments of soybean meal from ADM. ADM later learned that the soybean meal it had sold to Beadles might have contained ball clay that was contaminated with dioxin; however, ADM did not inform Beadles. Subsequently, on July 21, 1997, Beadles sold and attempted to ship 126 hogs that had been fed the allegedly contaminated feed to an Iowa purchaser, IBP, Inc. IBP, having learned of the alleged contamination from “an official notification,” halted the shipment in Missouri, and Beadles’s hogs were stored temporarily at a receiving center. During this time, three hogs were slaughtered and tested for dioxin; the test results were negative. In addition, another hog died, though the cause of death was unknown. Beadles then shipped the remaining 122 hogs back to its farm.
Beadles’s hogs are kept in an “old barn” and a “new barn,” which are approximately fifty yards apart. Beadles returned the 122 hogs to the new barn, from which they originated. When the hogs returned, they were extremely stressed and laid in an open-flush gutter system to cool themselves; this system washed feces and dirt from the hogs. Other hogs in the new barn that were penned down slope came into contact with that water, feces, and dirt. The IBP hogs were ultimately reshipped and sold to IBP at a reduced price because they had lost weight. The hogs that were penned down slope from the IBP hogs began dying approximately two or three weeks thereafter. Beadles sued, claiming that while being stored at the receiving center, the IBP shipment of hogs became infected with salmonella group B, which somehow spread to Beadles’s other hogs when the IBP shipment was returned and caused an increased death rate in its hog operation through 2001.
A bench trial was held on October 29-30, 2003. The circuit court concluded that ADM was liable for fraud and made numerous findings of fact, including the following:
1. ADM knew prior to July 21, 1997, and no later than July 7, 1997, that the federal government was concerned that the soybean meal ADM sold in April and May of that year was contaminated.
2. ADM had a special relationship with Beadles based on their past dealings, and based on its knowledge that the soybean meal it sold to Beadles would be fed to hogs and then placed into the food chain for ultimate human consumption.
3. ADM had a duty to disclose to Beadles that the feed ADM had sold Beadles in April and May, 1997, might be contaminated with dioxin, and ADM’s failure to disclose such information breached its duty to Beadles.
4. ADM’s failure to disclose to Beadles that the soybean meal ADM had sold Beadles in April and May, 1997, was alleged to be contaminated with dioxin resulted in Beadles sustaining damage.
5. Soon after the 122 hogs were again shipped to IBP, other hogs in the new bam began to have symptoms of salmonella and other diseases. Hogs from the facility began to die. Some hogs from the facility were sent to Arkansas Livestock and Poultry Commission for necropsy. The cause of death for those hogs was listed as salmonella group B, a new strain of salmonella not detected as a cause of death prior to July 21, 1997.
6. The increase in Beadles’s annual hog-death loss from 1997 through 2001 was “the result of diseases transmitted from hogs that were returned from the July 21, 1997, shipment infecting other hogs in the facility and infecting the facility itself.”
7. ADM’s failure to disclose the alleged dioxin contamination resulted in total damage to Beadles in the amount of $309,371.58.
ADM appealed, and the court of appeals reversed and dismissed. See Archer-Daniels-Midland Co. v. Beadles Enters., Inc., 92 Ark. App. 462, 215 S.W.3d 675 (2005). Beadles then filed a petition for review, which this court granted, pursuant to Ark. Sup. Ct. R_. l-2(e). Upon a petition for review, we consider an appeal as though it had originally been filed in this court. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). On appeal, ADM argues: (1) there was no evidence salmonella group B or any other diseases came from the July 21, 1997, shipment; (2) there was no admissible evidence that IBP rejected the shipment because of concerns about dioxin; (3) there was an inadequate foundation for Beadles’s evidence of damages; and (4) other findings and evidentiary errors require reversal. We affirm.
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the findings of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.
To establish fraud, a plaintiff must show: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance upon the representation; and (5) damage suffered as a result of the reliance. McAdams v. Ellington, 333 Ark. 362, 970 S.W.2d 203 (1998). Constructive fraud can exist in cases of breaches of fiduciary duties, but a plaintiff must show a material representation of fact. See Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997). A confidential or special relationship between parties gives rise to a duty to speak and clarify information upon which others might rely. See SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000).
ADM argues that there is no evidence of the cause of death of over 95% of Beadles’s 2600-plus hogs, no evidence that any of the hogs contracted salmonella group B from the Missouri receiving center in July 1997, and no evidence that any of the rejected hogs ever had salmonella group B. Accordingly, ADM argues that this court should reverse and dismiss the circuit court’s findings and judgment.
The record reveals that Wayne Sr. testified that the returned hogs were placed in pens 3, 4, and 5 of the “new barn,” and that these were the same pens that those hogs had been in prior to shipment. He stated that when the hogs were returned, they were extremely stressed and laid in the gutter to cool off in the water. He explained that the open flush gutter system used in the barn washed the dirt and grime off those hogs and that the pigs below those pens came in contact with all that dirt and grime. He testified that the pigs in the lower pens began to get sick, noting that the pigs would not eat, drink, or move around. He also testified that the pigs developed diarrhea. Wayne Sr. testified that soon, the pigs began dying, and that in one pen alone, 60% of the hogs were lost. Wayne Sr. said that more pigs were lost in one pen than were lost in the entire barn in the seven years prior to July 21, 1997.
Wayne Jr. testified that some of the pigs exhibited purple bellies, snouts, and ears. ADM states that these are the same symptoms of actinobacillus pleuropneumonia, and that the circuit court was simply left to speculate that the over 2600 hogs Beadles lost in 1997 and thereafter died from salmonella group B, as opposed to actinobacillus pleuropneumonia or other diseases present at Beadles’s facility many months prior to July 1997. ADM states that the mere fact that Beadles’s hogs died was not, of itself, evidence that ADM somehow caused the death of the hogs.
There is no dispute that none of the hogs from the July 21,1997, shipment underwent necropsies. However, Beadles points to other evidence that demonstrated that the hogs from that shipment contracted salmonella group B. Dr. Robert Conner, Jr., a veterinarian who testified on behalf of Beadles, explained how hogs generally die from diseases. Dr. Conner stated that stress was a major factor in contracting diseases, and that stress could be brought on by moving pigs, depriving pigs of feed and water, and crowding the pigs too tightly. Dr. Conner explained that stress causes the bacteria in a hog to start multiplying rapidly to literally billions per gram of intestinal content. He described how hogs undergo stress being hauled to slaughter, stating that the hogs would urinate and defecate between thirty and fifty pounds of waste, and that the waste would contaminate the truck. As to the July 21, 1997, shipment, Dr. Conner opined that due to the stressful environment, hauling the pigs to slaughter and then bringing them back to Beadles’s facility was a “disaster waiting to happen.”
Dr. Conner opined that the jump of a 3% loss in 1996 to a 40% loss in 1997 was an explosion of disease caused by hauling the hogs back to the Beadles’s facility. He further stated that, based on the continuing losses from 1998 to 2001, the death loss was related to salmonella group B. Dr. Conner opined that most of the hogs died of contamination brought on by the hogs that were returned to the facility. Dr. Conner also opined that the salmonella group B came from either the truck hauling the July 21, 1997, shipment or from the holding pens at the receiving center in Missouri. He based this opinion on the fact that the salmonella group B appeared for the first time in an August 1997 necropsy report, which was after the rejected hogs were returned to the Beadles’s facility, and the fact that Beadles did not buy feeder pigs from “sale barns.”
In light of the foregoing evidence, we do not agree with ADM’s contention that there was no evidence that salmonella group B or any other diseases came from the July 21, 1997, shipment. Further, it is clear that the circuit court found credible Dr. Conner’s testimony concerning what he believed was the cause of the increased death loss at Beadles’s facility. This court gives due deference to the superior position of the trial judge to determine the credibility of witnesses and the weight to be accorded to their testimony. City of Rockport v. City of Malvern, 356 Ark. 393, 155 S.W.3d 9 (2004). With this standard in mind, we cannot say that the circuit court clearly erred in finding that the increase in the annual death loss in Beadles’s hog herd from 1997 through 2001 was caused by salmonella group B and other diseases that were introduced by the rejected hogs.
Next, ADM argues that there was no admissible evidence that IBP rejected the shipment because of concerns about dioxin. The circuit court found that IBP rejected the shipment because the hogs had a reputation of having eaten soybean meal contaminated with dioxin. ADM points out that no one from IBP testified at trial, and that all of Beadles’s testimony and evidence relating to this issue was admitted over ADM’s hearsay objection. ADM states that this issue is significant because in order to hold ADM responsible for the shipment being returned to Beadles’s facility and allegedly spreading diseases, Beadles had to prove that IBP rejected the shipment based on something ADM did or failed to do. Stated differently, ADM contends that if there was no admissible evidence to show why IBP rejected the shipment, then ADM could not be held responsible for that rejection and the events that allegedly followed. We disagree.
As previously noted, the circuit court found that ADM had a special relationship with Beadles based on their past dealings and based on its knowledge that the soybean meal it sold to Beadles would be fed to hogs and then placed into the food chain for ultimate human consumption. Based on this special relationship, the circuit court concluded that ADM had a duty to disclose to Beadles that the soybean meal it sold to Beadles was alleged to have been contaminated with dioxin, and ADM’s failure to disclose this information breached its duty to Beadles. We need not determine whether the circuit court abused its discretion in admitting evidence concerning the reason IBP rejected the shipment because the reason for rejection is not essential to Beadles’s claim. Beadles contended that had it known that the soybean meal was allegedly contaminated with dioxin, it either would not have shipped the hogs, or it would have tested the shipment prior to sending it out. Thus, it is immaterial why IBP rejected the shipment.
ADM next argues that there was an inadequate foundation for Beadles’s evidence of damages. Dr. Conner established through necropsy reports that a new strain of salmonella had been introduced into Beadles’s facility after the IBP shipment was returned to the facility. Dr. Conner further stated that most of the hogs died as a result of contamination from the return of shipped hogs to its facility. Beadles showed that the death rate among the hogs in its facility prior to July 21, 1997, was less than five percent, and that after July 21, it experienced an annual death loss in 1997 of 40.03%, in 1998 of 25.09%, in 1999 of 15.83%, in 2000 of 22.25%, and in 2001 of 28.5%. The circuit court concluded that the increase in the annual death loss in Beadles’s hog herd from 1997 through 2001 was the result of diseases transmitted from hogs that were returned from the July 21, 1997, shipment infecting other hogs in the facility and infecting the facility itself. The circuit court stated that it was not necessary that Beadles establish with absolute certainty as to exclude every other reasonable conclusion that damages Beadles suffered were a result of the July 21,1997, shipment of hogs that were returned to Beadles, causing an outbreak of salmonella and other diseases in its hog herd. Further, the circuit court concluded that it was sufficient that Beadles established by substantial evidence that the increased death loss in its hog herd was the result of salmonella and other diseases being spread by the returned shipment of hogs to the other hogs in the bams. We cannot say that the circuit court’s findings are clearly erroneous.
Finally, ADM claims that the cumulative effect of several other erroneous findings and errors requires reversal. First, ADM argues that Exhibit BB, the list of purchasers of feed, was inadmissible hearsay and, further, that even if the list were admissible, it would not prove that IBP based the rejection of the shipment on Beadles’s inclusion on the list. As previously noted, we need not determine whether the circuit court abused its discretion in admitting evidence to prove why IBP rejected the shipment because the reason for the rejection is not essential to Beadles’s claim.
Next, ADM argues that the circuit court erroneously found that the cause of death for the hogs that were necropsied from the new barn was salmonella group B, a cause of death not present on the farm prior to July 21, 1997. As pointed out by Beadles, while the necropsy reports do not specifically use the term “cause of death,” they do use the term “diagnosis,” and Dr. Conner testified that “diagnosis” referred to cause of death. ADM’s argument is without merit.
ADM next argues that the circuit court abused its discretion in admitting into evidence, over ADM’s objection, interrogatory responses and documents produced by ADM in response to Beadles’s requests for production of documents. We disagree. As noted in Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993) (supplemental opinion), answers to interrogatories may qualify as admissions by a party-opponent which are not hearsay, as defined, and therefore may constitute substantive evidence and be admissible in a party’s case-in-chief.
Finally, ADM argues that the circuit court abused its discretion in admitting over ADM’s hearsay objection a certified copy of a letter from the FDA. The letter at issue is a statement and warning sent out by the FDA under its duty to protect the public from consuming adulterated food. Further, the letter, which was addressed to feed mill operators, stated that recipients of contaminated soybean meal were to discontinue use of the soybean meal and to hold any remaining soybean meal and feed made from that soybean meal. Beadles contends that the letter was admissible pursuant to Ark. R. Evid. 803(8). We agree. Pursuant to Rule 803(8), “records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law” are not excluded by the hearsay rule. The circuit court did not abuse its discretion in admitting the letter.
In sum, because we find that the circuit court’s findings are not clearly erroneous, we affirm.
Affirmed.
Glaze, J., dissents.
Gunter, J., not participating.
ADM is the successor company to Quincy Soybean Company, which sold the allegedly contaminated soybean meal to Beadles.
Wayne Sr. testified that a “sale barn” is a place where hogs and other animals are brought to a barn for sale with the hogs presumably coming into contact with other animals. | [
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Betty C. Dickey, Justice.
Johnny Weaver, former mayor of West Helena, appeals the temporary restraining order (TRO) issued by Phillips County Circuit Judge L.T. Simes on January 3, 2005, restraining Weaver from interfering in the day-to day operations of the West Helena Police Department and reinstating Vincent Bell as that city’s chief of police. Weaver additionally appeals Judge Simes’s refusal to recuse from the case, his removal of Weaver from the courtroom during a hearing, and his imposition of Ark. R. Civ. P. 11 sanctions on Weaver and his attorney. We find that all of the points on appeal are moot with the exception of the imposition of sanctions under Rule 11, and we reverse on that point.
Mayor Weaver fired Vincent Bell in November 2004. The termination was preceded by a suspension and was confirmed by a decision of the West Helena Civil Service Commission on November 23, 2004. Bell filed a notice of appeal in the Phillips County Circuit Court on December 15, 2004, and the case, numbered 04-398, was assigned to Circuit Judge Harvey L. Yates.
The West Helena City Council, in a called meeting on Saturday, January 1, 2005, declared the seat of alderman Eddie Schieffler vacant, even though Schieffler disputed the declared vacancy and was present and attempting to vote. James Parks was elected to fill Schieffler’s position and voted to reinstate Bell with the 2/3 majority, which the council maintained rendered the vote “veto-proof.” The council then voted to abolish the Civil Service Commission. Weaver subsequently vetoed all measures taken by the city council at that meeting. The Phillips County Circuit Court later ruled that there had been no vacancy for Schieffler’s position, that Parks was thus a usurper, and that all actions taken by the city council at the January 1 meeting were null and void.
On January 3, 2005, Bell, Parks, and five other members of the city council who had voted to reinstate Bell filed the present case, numbered 05-04, in the Phillips County Circuit Court, asking Circuit Judge L.T. Simes for a TRO which he granted, reinstating Bell and restraining Weaver from interfering in the day-to-day operations of the police department.
On January 6, 2005, approximately one hour before the scheduled hearing on the TRO, Weaver filed a motion for recusal. The motion alleged that Judge Simes had initiated an improper ex parte conversation with Weaver asking Weaver to deal leniently with Bell; owned an interest in a radio station that was going to be paid to air city council meetings; and had issued the TRO despite knowing that a connected case was pending before another judge. A hearing on the motion for recusal was conducted in lieu of the scheduled TRO hearing, at which time Weaver testified as to the matters contained in the motion for recusal. In the midst of Weaver’s testimony, Judge Simes called a recess and moved the proceedings to his chambers. No future hearing was scheduled prior to the conclusion of the hearing, the remainder of which took place in Judge Simes’s chambers.
The next morning, January 7, 2005, Judge Simes issued an injunction which restrained the press from reporting what had transpired at the previous day’s hearing. That order was the subject of our decision in Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006). Judge Simes also issued an order scheduling a hearing on the motion for recusal for 1:00 p.m. that day in Forrest City, Arkansas. At that hearing, Judge Simes arbitrarily removed Weaver from the courtroom at the outset of the proceedings and then conducted an inquiry into possible Rule 11 violations by Weaver’s attorney, Todd Murray. Weaver and Murray were given no notice that possible Rule 11 violations would be considered at the hearing, and the Rule 11 inquiry was taken up by the court before there had been a full hearing on the merits of the allegations in the motion for recusal. Judge Simes ultimately declined to recuse.
On January 26, a full hearing on the TRO was conducted by Judge Simes. On April 28, Judge Simes entered an order in which he declined to recuse from the case and imposed Rule 11 sanctions on Murray and Weaver for filing the motion to recuse for an improper purpose and without a proper factual foundation. Judge Simes acknowledged the rulings that invalidated all the actions taken at the January 1, 2005, city council meeting, but he refused to dissolve the TRO, ruling that the TRO was to be held in abeyance pending further action by the city council and Mayor Weaver. Weaver appeals the rulings in the April 28 order, as well as Judge Simes’s removal of the appellant from the courtroom during the January 7 recusal hearing.
As a general rule, the appellate courts of this state will not review issues that are moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do this would be to render advisory opinions, which we will not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. This court has recognized two exceptions to the mootness doctrine. Id. The first one involves issues that are capable of repetition yet evading review, and the second one concerns issues that raise issues of substantial public interest, which if addressed, would prevent future litigation. Id.
We take judicial notice of the fact that the City of West Helena no longer exists as a separate legal entity. On January 1, 2006, the adjoining cities of Helena and West Helena merged to form the new city of Helena-West Helena. Thus, the particular governmental positions and relationships at issue in the present case are extinct, and our decision would have no practical effect upon the legal controversy here. For the foregoing reasons, we conclude that the points on appeal raised by the appellant, with the exception of the Rule 11 issue which represents an extant monetary obligation, are moot.
The appellant contends that the trial court abused its discretion by imposing Rule 11 sanctions on his attorney, Todd Murray, and himself.
Ark. R. Civ. P. 11 states in pertinent part:
(a) The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and. that it is not interposed for any improper purpose, such as to harass or to cause any unnecessary delay or increase in the cost of litigation.
(b) A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (a). It shall be served as provided in Rule 5 but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe) the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
The imposition of sanctions is a serious matter to be handled with prudence, and the trial court’s decision is due substantial deference. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998). This court reviews a trial court’s determination of whether a violation of Rule 11 has occurred under an abuse-of-discretion standard. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). In deciding an appropriate sanction, trial courts have broad discretion, not only in determining whether sanctionable conduct has occurred, but also what appropriate sanctions should be. Crockett & Brown v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995).
In his April 28, 2005, order, Judge Simes ruled that the conduct of Todd Murray in filing the motion to recuse was sufficient to warrant sanctions under Rule 11 and ordered Murray and Weaver to pay the fees and costs of the opposing attorneys for their time spent in opposing the motion. Weaver had earlier advanced three primary allegations in support of his motion to recuse. First, Weaver alleged that sometime subsequent to his suspension of Bell, Judge Simes initiated a conversation with Weaver and asked him if anything could be done to help Bell. Second, Weaver alleged that Judge Simes had an ownership interest in a radio station with which the city council had made arrangements to make paid broadcasts of the city council meetings. Third, Weaver alleged that Judge Simes had issued the TRO despite knowing that a case was pending before another circuit judge involving the same subject, which was the possible reinstatement of Bell. On January 13, Weaver withdrew this last allegation regarding Judge Simes’s knowledge of the other pending case.
Throughout the proceedings, Mayor Weaver consistently maintained that the ex parte conversation with Judge Simes had occurred. Judge Simes never denied the conversation, and no other evidence was produced to impeach Weaver’s account of the dialogue. Weaver also firmly maintained that he had been given reason to believe that an arrangement had existed whereby the city council would compensate the radio station for its broadcasts of city council meetings. The appellees called a city councilman, Eddie Lee, who testified that the council did not pay the radio station for the broadcasts, and so there was conflicting evidence as to any payment arrangement between the city council and the radio station. However, it is undisputed that Judge Simes had an ownership interest in the radio station and that the station did air the city council meetings. Thus, one of the allegations concerning the ex parte conversation was not contradicted. Neither of the allegations were conclusively proven to be false, and such proof should have been a prerequisite to the imposition of any sanctions under Rule 11.
In his order filed on April 28, 2005, Judge Simes relied on improper bases in imposing sanctions upon the appellant under Rule 11. Judge Simes stated that the appellant’s motion for recusal was “an attempt to shop for a judge” and in support of that conclusion, Judge Simes made the following statement, “When questioned by the court about the judge shopping issue, Mr. Murray stated, ‘Yes sir, there is. I think on both sides.’ That is an admission.” The more complete exchange was as follows:
The Court: (interposing) But, Mr. Murray there is an issue I’ve got to resolve. I’m not going to presuppose anything, Mr. Murray. My mind is not made up. It wouldn’t be fair for me to do that, and I’m not going to do that. There is an issue in this case about judge shopping.
Murray: Yes, sir, there is. I think on both sides. I heard what Mr. Lewellen said on the record yesterday that he thought there may have been some judge shopping, and there may well have been some judge shopping on their part. We weren’t judge shopping....
In the above statement, Murray admits that judge shopping was an issue in the case, but then states unambiguously that if any judge shopping occurred in the case, it was done by the appellees, not the appellants. In the order, Judge Simes quotes Murray’s statement out of context, terms it an admission, and relies on it to support his conclusion that the appellant filed the motion to recuse in an attempt to “shop” for a judge. Judge Simes’s use of the statement to support a conclusion inapposite to the statement’s actual import is a significant misrepresentation. The appellant made no admission that he was judge shopping, and Judge Simes abused his discretion by sanctioning the appellant on that basis. Judge Simes also censured the appellant in the order for making the original allegation that Judge Simes entered the TRO despite having knowledge that a case involving the same subject matter was pending before another judge. This allegation had been properly withdrawn by the appellant seven days after the filing of the motion for recusal, and thus should not have been sanctioned under Rule 11.
There was no separate motion for sanctions made in this case, and such a motion is required by Rule 11 before sanctions may be imposed. At the January 7 hearing, which was scheduled as a recusal hearing, Judge Simes immediately began a protracted inquiry into possible Rule 11 violations by the appellant. The appellant was given no notice that Rule 11 would be addressed at the hearing. Judge Simes had Weaver removed from the courtroom initially, and he then conducted an intensive inquiry into Murray’s knowledge and application of the Rules of Professional Conduct. The examination generally consisted of Judge Simes reading sizable passages from the rule book aloud, and then questioning Murray on the extent of his knowledge thereof. Murray stated that he was familiar with the rules and had adhered to them in the present case, although he admitted that he could not recite the rule book verbatim. Weaver was then returned to the courtroom and similarly quizzed, as if he were an attorney and familiar with the rules. All this occurred prior to any real inquiry into the veracity ofWeaver’s allegations supporting the motion to recuse. Judge Simes seemed to presume the falsity of the allegations throughout the proceedings.
In summation, the procedural requirements for the imposition of sanctions under Rule 11 were disregarded by Judge Simes, and the appellant was subjected to a de facto Rule 11 hearing of which he was given no notice. That hearing occurred before the court attempted to establish the falsity of the allegations in the motion for recusal, and the court ultimately failed to establish that the allegations were false. Judge Simes relied on improper bases in his order imposing the sanctions. For the foregoing reasons, we conclude that Judge Simes abused his discretion by imposing sanctions upon the appellant under Rule 11. Based on the record before us, it appears that Judge Simes has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission. See Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000).
Moot in part; reversed in part. | [
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Donald L. Corbin, Justice.
Appellant Travis Wayne Davis, Jr., appeals the order of the Lonoke County Circuit Court denying his motion to suppress items seized during a nighttime search of his business. On appeal, he argues that it was error to deny his motion to suppress because the warrant authorizing the search was not signed by a neutral and detached magistrate and was therefore invalid. This court assumed jurisdiction of the instant case as involving a significant issue needing clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(5). We find no error and affirm.
The record reveals that authorities were suspicious that Davis was manufacturing methamphetamine at his business, Core, Inc., located at 3170 Highway 294, in Lonoke County. On December 8, 2004, Detective Barry Flannery of the Little Rock Police Department, submitted an affidavit setting forth probable cause for the issuance of a nighttime search warrant for “the business, curtilage, out buildings, vehicles, and person of Wayne Davis[.]” The affidavit was submitted to Lonoke County Circuit Judge Lance Hanshaw. That evening, after reviewing the affidavit, Judge Hanshaw signed the requested search warrant.
Following the search, which revealed certain ingredients commonly used in the manufacture of methamphetamine, Davis was arrested and charged with numerous drug offenses. He filed a motion to suppress the items seized as a result of the search of his business on December 9, arguing that the search warrant was invalid, as it had not been signed by a neutral and detached magistrate. In this regard, Davis argued that Judge Hanshaw had previously recused from all his cases, because Davis’s son had been arrested in connection with a robbery of Judge Hanshaw’s home and, therefore, it was improper for Judge Hanshaw to sign the search warrant.
At a hearing on Davis’s motion, Davis and the State stipulated that if Judge Hanshaw were called to testify about the issuance of the warrant, he would testify that he authorized the warrant “based upon the four corners of the affidavit and what he felt to be probable cause within that document.” The trial court denied the motion to suppress. Thereafter, Davis pled guilty, pursuant to Ark. R. Crim. P. 24.3(b), thereby reserving his right to appeal the trial court’s denial of his motion to suppress. This appeal followed.
In reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances. See Dickinson v. State, 367 Ark. 102, 238 S.W.3d 125 (2006). We reverse only if the ruling denying a motion to suppress is clearly against the preponderance of the evidence. Id.
On appeal, Appellant argues that the search warrant issued by Judge Hanshaw was invalid because Judge Hanshaw’s prior recusal from all of Davis’s cases prevented him from being a neutral and detached magistrate when he signed the warrant authorizing the search of Davis’s business. Thus, according to Davis, the search warrant was facially invalid and the items seized as a result of that search should be suppressed.
The State counters that there was no evidence presented to indicate that Judge Hanshaw knew that the “Wayne Davis” named in the affidavit was the same “Travis Wayne Davis” who was involved in the prior cases from which the judge recused. In addition, the State avers that Judge Hanshaw recused in Davis’s prior cases because his involvement might present “an appearance of impropriety[.]” According to the State, Davis submitted no evidence to prove that Judge Hanshaw was in fact biased against him, and as such the State avers that Davis’s argument on appeal must fail. We agree with the State.
Pursuant to the United States Supreme Court’s holding in Shadwick v. City of Tampa, 407 U.S. 345 (1972), for a warrant to be valid, the issuing officer must meet two tests: “He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.” Id. at 350. The Court further explained that neutrality and detachment require “severance and disengagement from activities of law enforcement.” Id. In addition, there must be a lack of “direct, personal, substantial, pecuniary interest” in the issuance of the warrant. Connally v. Georgia, 429 U.S. 245, 250 (1977). If the issuing magistrate does not meet the constitutional mandate of being neutral and detached, the warrant is invalid. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
It is clear from our review of case law that an argument similar to the present one has heretofore never been raised in this court. Our cases dealing with a challenge to the detached and neutral magistrate requirement have previously involved situations where the appellants challenged a warrant on the basis that a clerk issued a warrant after the municipal judge signed a pad of blank arrest warrants and instructed the clerk to issue the warrants after reading the supporting affidavit. See Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). See also Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988) (applying good-faith exception to warrant signed by a clerk rather than a judge). Another issue addressed by this court but not on point with the present case is where there is an allegation that an issuing magistrate is not neutral and detached because he is involved in law-enforcement activities. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).
An argument similar to the instant one was raised, however, in State v. McBride, 523 N.W.2d 106 (Wis. Ct. App. 1994). There, the appellant challenged the validity of a search warrant on the basis that the issuing magistrate was biased against her. Specifically, the appellant, a licensed attorney, argued that the issuing magistrate harbored actual bias against her because she had actively supported the judge’s opponent in a recent election and had filed a formal complaint against the judge with the Wisconsin Judicial Commission. During the pending judicial investigation, the judge recused from all cases in which the appellant appeared as counsel. The complaint was subsequently dismissed and, thereafter, the judge signed a warrant authorizing a search of the appellant’s law office.
In determining whether the judge satisfied the neutral and detached standard, the Wisconsin Court of Appeals rejected the appellant’s assertion that previous decisions of the Supreme Court were dispositive, as the cases cited by the appellant involved factual situations where the issuing magistrate was involved in the investigation or prosecution of the person who was subjected to the search. Noting that it had been unable to find a case on point, the Wisconsin court then stated that its line of cases dealing with a defendant’s constitutional right to an impartial and unbiased judge were instructive. The court stated:
In determining whether Judge Koehn was actually biased, we must evaluate the existence of bias in both a subjective and an objective light. The subjective component is based on the judge’s own determination of whether he will be able to act impartially. In determining whether the subjective test is satisfied, it is only necessary to examine Judge Koehn’s actions concerning the application for the search warrant. If Judge Koehn subjectively believed he would not be able to act impartially, he would have been required to disqualify himself from hearing the application for the search warrant. Because he did not disqualify himself, we may presume that Judge Koehn believed himself capable of acting in an impartial manner and therefore, our inquiry into the subjective test is at an end. However, the fact that Judge Koehn did not believe that he was subjectively biased does not end our inquiry.
Under the objective test, we must determine whether there are objective facts demonstrating that Judge Koehn was actually biased. Under this test, the defendant must show that the “trial judge in fact treated him unfairly.” Merely showing that there was an appearance of partiality or that the circumstances might lead one to speculate that the judge was partial is not sufficient.
Id. at 415-16 (citations omitted) (footnote omitted).
We find the analysis of the Wisconsin court instructive in the instant case. Thus, we must determine whether Judge Hanshaw believed that he could act impartially and also whether Davis presented any evidence of actual bias.
It is well settled under Arkansas law that the question of bias is usually confined to the conscience of the judge. Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004), cert. denied, 543 U.S. 1150 (2005). Judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise. Id. We elaborated on the concepts of recusal and bias in Holder v. State, 354 Ark. 364, 376, 124 S.W.3d 439, 447-48 (2003) (citations omitted), stating:
Further, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the judge that will cause us to reverse his or her refusal to recuse.
Here, the record reflects that Judge Hanshaw recused from Davis’s cases in order to avoid an appearance of any impro priety due to the fact that Davis’s son had been charged with burglarizing the judge’s home. At no time, however, did Judge Hanshaw indicate that he was actually biased against Davis. Notably, Davis presented no evidence to indicate that Judge Hanshaw was biased against him when signing the search warrant at issue here. In fact, Davis does not challenge the sufficiency of the affidavit issued in support of the warrant or otherwise indicate that the search warrant was defective in any manner but for the fact that it was issued by Judge Hanshaw. Thus, his allegation that Judge Hanshaw was biased is insufficient to prove that the search warrant was not issued by a neutral and detached magistrate.
Moreover, we are persuaded by the State’s argument that Appellant presented absolutely no proof that Judge Hanshaw even realized that the “Wayne Davis” who was the subject of the search warrant was the same “Travis Wayne Davis” who had previously appeared before him more than a month ago. As the trial court ruled from the bench:
The facts axe that the defendant requested the First Division Judge to recuse from any pending cases, and based upon the defendant’s request, I conclude that the First Division Judge, to avoid the appearance of impropriety granted the defendant’s request. That was done on November the 2nd of 2004.
Sometime in the nighttime of December the 8th of 2004 law enforcement officers probably go to that same judge’s house or call that same judge in the night and say, “Can you meet us at a designated location because we’ve got an affidavit for search warrant,” okay and in the nighttime hours he reviews an affidavit for search warrant. He reads it. And I’m sure he reads the name,Travis Wayne Davis, Jr., but quite frankly, I conclude I’m not real sure he knows who Travis Wayne Davis, Jr. is because I’m a judge and I see thousands of names and they don’t mean anything to me. They are names on a piece of paper. It just doesn’t register. It seems to me that there has to be some link between on that day when he’s looking at that affidavit that he even knows we’re talking about the same person. It almost seems that the argument is that I assume that he knows. I cannot reach that assumption. In fact, I reach just the opposite assumption. I don’t even think he has a clue that the same person he’s signing this affidavit on is the same person he was asked to recuse on.
Even if we were to assume that Judge Hanshaw knew that Wayne Davis was the same Travis Wayne Davis that was involved in the prior cases, this fact standing alone is insufficient to establish that the judge was anything but neutral and detached when he signed the search warrant. Appellant had the burden of proof in this matter and failed to sustain it.
As the Eighth Circuit held, a magistrate judge is neutral and detached if his or her impartiality cannot reasonably be questioned. United States v. Mathison, 157 F.3d 541 (8th Cir. 1998). There, the appellant argued that the issuing magistrate was biased against him because in the course of conducting business seminars, the appellant had criticized the magistrate’s previous handling of a probate case. In rejecting the appellant’s argument of bias, the court stated that he had failed to allege any facts that could lead a reasonable person to believe that the magistrate had been unable to impartially assess the existence of probable cause for the search warrant. Id. Likewise, Appellant failed to present any proof that would call into question Judge Hanshaw’s impartiality or inability to assess whether probable cause existed for the issuance of the search warrant.
Affirmed.
Glaze, J., concurs.
Prior to Davis’s arrest in the instant case, he was arrested and charged with drug offenses in cases, CR03-110, CR04-262, and CR04-510. Also decided this same date is an appeal from a guilty plea entered in CR04-262.
While Davis mentions article 2, section 15, of the Arkansas Constitution in his brief, he raises no argument that he is afforded greater protection under the Arkansas Constitution; thus, the foregoing analysis is limited to the Fourth Amendment protections. See Steinmetz v. State, 366 Ark. 222, 234 S.W.3d 302 (2006) (holding that it was not necessary to consider whether article 2, section 15, affords different protection than the Fourth Amendment where the appellants did not develop such an argument). | [
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Annabelle Clinton Imber, Justice.
This case is an appeal from a default judgment in a medical-malpractice case. Appellant, Dr. Lisa McGraw, a doctor with Mercy Health Systems of Northwest Arkansas, was one of three named defendants in a medical-malpractice case filed by Appellees, Scott and Lizabeth Jones. Appellant was properly served with process on December 2, 2004. Upon receiving the complaint and summons, Appellant gave the documents to her office staff, who, in turn, placed them in interdepartmental mail to the in-house attorney, Heather Lipke. According to Ms. Lipke’s affidavit, the documents never reached her. Appellant never filed an answer or other responsive pleading.
On March 22, 2005, Appellees filed a motion for default judgment against Appellant. On March 23, 2005, the circuit court entered a default judgment against Appellant and a dismissal without prejudice as to the remaining defendants. The court scheduled a hearing on April 18, 2005, for the purpose of determining the amount of damages sustained by Appellees. At that hearing, Appellees presented evidence on their actual damages totaling around $43,000 and past and future pain and suffering. The circuit court awarded $500,000 in damages. Thereafter, Appellant was served with a writ of garnishment on May 17, 2005, and on June 2, 2005, she filed a motion to set aside default judgment. The circuit court held a hearing and denied the motion, as well as Appellant’s subsequent motion to clarify or amend its prior order, on October 3, 2005. Appellant then filed a notice of appeal on October 18, 2005. As the appeal involves the interpretation and constitutional challenge of Ark. R. Civ. P. 55, we have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b)(6) (2005).
I. Excusable Neglect
Appellant first argues that the circuit court erred in failing to set aside the default judgment because Appellant’s failure to file an answer was the result of excusable neglect under Ark R. Civ. P. 55(c) (2005). Ark. R. Civ. P. 55 provides in relevant part:
(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.
(b) Manner of Entering Judgment. The party entitled to a judgment by default shall apply to the court therefor, but no judgment by default shall be entered against an infant or incompetent person. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.
(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; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Ark. R. Civ. P. 55(a)-(c) (2005). We have recognized that defaults are not favored in the law and that a default judgment may be a harsh and drastic result affecting the substantial rights of a party. CMS Jonesboro Rehab., Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). Notwithstanding, we have declined to set aside default judgments where the neglect or mistake is inexcusable. Volunteer Transp., Inc. v. House, 357 Ark. 95,162 S.W.3d 456 (2004); Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992). The standard by which we review the granting of a default judgment and the denial of a motion to set aside the default judgment is whether the circuit court abused its discretion. Volunteer Transp., Inc. v. House, supra.
In this case, Appellant offers as grounds for relief that she followed Mercy’s policy in handling her complaint. Specifically, after receiving the summons and complaint, she turned the papers over to the senior office administrator “who assured her the matter would be taken care of.” In turn, the administrator attempted to ensure that the lawsuit papers were forwarded to Mercy’s in-house attorney, but for reasons unknown, the papers never reached the attorney. Appellant submits that her actions in relying on the assurances by the office staff, though neglectful, were not inexcusable neglect. As support for that proposition, she suggests that this case is similar to Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993), where we affirmed the trial court’s holding that the defendant’s failure to answer the summons constituted excusable neglect. However, the facts in Hubbard are markedly different from those in the instant case.
In Hubbard, the plaintiff filed suit against Mid-Arkansas Tom’s, The Shores Group, Inc., and 1st Service, Inc. Service of process on Mid-Arkansas Tom’s was had by serving its president, Jerry Wardlaw. Wardlaw testified that five days before being served, he learned that his wife of twenty-seven years had breast cancer that would require surgery and extensive post-surgical treatment. Furthermore, on the day he was served, his bank called to inform him of an overdraft and he discovered that an employee had stolen $6,000 in deposits. Finally, he testified that the style of the complaint was “Harold Hubbard v. The Shores Group, Inc.” and that he did not realize Mid-Arkansas Tom’s was also included in the suit. Mid-Arkansas Tom’s failed to answer the complaint, and a default judgment was entered against it. A month later, Mid-Arkansas Tom’s filed a motion to set aside the default judgment, which the court granted. On appeal, we affirmed the circuit court’s decision to set aside the default judgment, holding, “It is hard to imagine a more compelling set of facts than those of this case for a finding of excusable neglect.” Id. at 502, 855 S.W.2d at 927. In the instant case, Appellant has demonstrated no extenuating circumstances rising to the level of the facts in Hubbard. Additionally, in Hubbard we reviewed the circuit court’s finding of excusable neglect for an abuse of discretion; here we must review the circuit court’s finding of inexcusable neglect for an abuse of discretion.
Moreover, we have held that failure to attend to business is not excusable neglect. Volunteer Transp., Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004); Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). The facts in CMS Jonesboro Rehabilitation, Inc. v. Lamb, where this court rejected the notion that relying on outside assurances that the lawsuit would be handled should constitute sufficient action to avoid a default judgment, are almost indistinguishable from the instant case. In CMS, the defendant CMS contacted its insurance carrier about defending an action on behalf of CMS. The insurance company initially agreed, but then reneged and advised CMS to contact the general contractor, which CMS did. Id. at 221, 812 S.W.2d at 475. The general contractor agreed to assume the defense, but no defense was ever mounted. Four and a half months after that, a default judgment was entered against CMS, and another four and a half months elapsed before CMS moved to set aside the judgment. Id. at 218, 812 S.W.2d at 473. In affirming the circuit court’s finding that the actions did not constitute excusable neglect, we said
CMS did nothing to assure that the general contractor was indeed defending it. And four and one-half months did pass from the date of filing the complaint to the date of entry of a default judgment during which time CMS apparently did not monitor the case. More was required of CMS than was shown in this case, and that formed the basis for the trial court’s ruling.
Id. at 222, 812 S.W.2d at 476.
These same arguments apply to the instant case. Here, Appellant did nothing to ensure that a defense was being mounted on her behalf by Mercy’s in-house attorney. Indeed, she did not even follow up to make sure that the attorney received the papers. Over three months passed between the date Appellant received the summons and complaint and the date the court entered the default judgment. Yet, during that period of time, she did nothing to inquire about the status of the suit. Just as in the case of CMS, more was required of Appellant than was shown, and her failures do not amount to excusable neglect. CMS Jonesboro Rehab., Inc. v. Lamb, supra; see also Sun Gas Liquids Co. v. Helena Nat’l Bank, 276 Ark. 173, 633 S.W.2d 38 (1982) (no excusable neglect where secretary of garnishee averred that she had mailed notice of garnishment to home office in Pennsylvania and was only told later that it never arrived).
Further, the fact that Appellant may have offered a meritorious defense to the underlying claim is not sufficient to support setting aside the default judgment. While it is true that defendants wishing to set aside default judgments must demon strate a meritorious defense to the action, the defense in and of itself is not sufficient without first establishing one of the grounds laid out in Ark. R. Civ. P. 55(c). Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998); Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996). In her argument, Appellant sets forth in detail the “meritorious defense” that could have been presented at trial and suggests that it would be unfair to allow the judgment against Appellant to stand. While these arguments may be true and the default judgment against Appellant may seem unfair, the judgment need not be set aside absent a showing of some Rule 55(c) ground. Our court elaborated on this idea in Tharp v. Smith, supra:
Here, appellant argues that the “reason” to set aside the judgment is because he has a meritorious defense and a miscarriage of justice will result if he is not allowed to present it. This argument clearly circumvents the dual requirements of Rule 55(c). Moreover, it ignores the cogent fact that the reason Appellant was not allowed to present a defense in the first place is because of his own unexcusable [sic] default.
Id. at 265, 930 S.W.2d at 353. Similarly, even though the default judgment in the instant case may seem unfair, it cannot be set aside absent a showing of one of the 55(c) grounds. As Appellant failed to demonstrate that her failure to answer the summons was excusable neglect, she was not entitled to have the default judgment set aside. Thus, we affirm the circuit court on this point.
II. Hearing on Damages
Appellant’s second argument for reversal is that the circuit court erred in failing to provide notice of the hearing on damages to Appellant or, in the alternative, in failing to grant a new hearing on damages. Though Appellant recognizes that “Rule 55 is silent as to what notice, if any, a defaulting defendant is due with respect to a damages hearing,” Appellant nonetheless maintains that the circuit court should have provided notice of the hearing. In support of this assertion, Appellant offers cases holding that a defendant in a default-judgment case has the right to cross-examine the plaintiffs witnesses, to introduce evidence in mitigation of damages and to challenge the sufficiency of the evidence on appeal. See, e.g., Clark v. Michael Motor Co., 322 Ark. 570, 910 S.W.2d 697 (1995); B&F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). While these cases do allow a defendant to present evidence at the damages hearing, they make no statement regarding the defendant’s right to notice of the hearing. Appellant suggests that because defendants have the right to cross-examine witnesses and present mitigating evidence, they must also have the right to notice of the hearing; such an assumption, however, is not necessarily true. A defendant could have the right to introduce evidence at the hearing if he or she is present, but not have the right to notice of the hearing. Indeed, we have held that although a hearing is required to determine the amount of damages, subsection (b) of Rule 55 does not require that notice of the hearing be given to a defaulting defendant who has not appeared. Tharp v. Smith, supra; Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). The court in Divelbliss explained as follows:
Some jurisdictions require that notice of the hearing be given to the defaulting defendant even when he has never appeared, but the Arkansas rule, A.R.C.P. 55(b), does not require that notice be given to a defaulting defendant who has not appeared. Perhaps the reason is that it would be superfluous to again serve a defendant who already received one notice but failed on an ongoing basis to respond.
Divelbliss v. Suchor, 311 Ark. at 16, 841 S.W.2d at 604. Here, the hearing on damages was on April 18, 2005, and Appellant did not make her first appearance in the case until June 2,2005, when she filed her motion to set aside the default judgment. Thus, we conclude that the circuit court did not err in failing to give Appellant notice of the hearing on damages or, in the alternative, in failing to grant a new hearing on damages.
III. Rule 55 and Due Process
For her penultimate argument on appeal, Appellant asks us to declare Ark. R. Civ. P. 55 unconstitutional for failing to require notice of the hearing on damages. We construe court rules using the same canons of construction as are used to construe statutes. JurisDictionUSA. v. LoisLaw.com, 357 Ark. 403, 183 S.W.3d 560 (2004). In support of her argument, Appellant cites numerous cases holding that due process requires that a person be given notice and a reasonable opportunity for a hearing before being deprived of property. However, as noted by our court in Divelbliss, defendants suffering from default judgments have been given notice of the pending suit through service of the original complaint and summons. Divelbliss v. Suchor, 311 Ark. at 8, 841 S.W.2d at 600. Further, such defendants are presumed to know that if they do not respond, they will suffer default judgments and may suffer a monetary judgment against them. Thus, the requirements of due process are met and Rule 55 is not unconstitutional.
IV Sufficiency of Evidence on Damages
Appellant’s final challenge is to the sufficiency of the evidence on damages. In civil cases where the trial judge, rather than a jury, sits as the trier of fact, the correct standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings are clearly erroneous or clearly against the preponderance of the evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). At the damages hearing, the circuit court received evidence solely from the Appellees in this case, with each testifying to the damages sustained by Mr. Jones as a result of a pulmonary embolism he suffered. Appellees introduced medical statements and bills totaling $37,644, prescription bills in the amount of $714, and lost wages totaling $6,673. Additionally, both Mr. and Mrs. Jones testified to the extensive pain and suffering experienced by Mr. Jones. He testified that he could no longer do the same activities he had been able to do before the embolism. Counsel for Appellees argued that though the actual out-of-pocket expenses only amounted to approximately $43,000, the “more significant elements of damage are the pain and suffering that he went through and the mental anguish he had and continues to have.” The circuit court ultimately awarded $500,000 in damages.
Appellant argues that the $500,000 judgment was arbitrary and not supported by sufficient evidence. Appellant notes that the mental anguish testified to by Mr. Jones was largely speculative, including fear of overexertion and damage to organs. Furthermore, Appellant points to the complete lack of expert testimony on the issue of future pain and suffering or permanent disability. Appellees respond that expert testimony is not required in all cases and that the circuit court’s award was not an abuse of discretion.
In this case, Appellees presented evidence of actual out-of-pocket expenses in the amount of approximately $43,000, but the circuit court awarded $500,000 in damages. Presumably, the court awarded over $450,000 for past and future pain, suffering, and mental anguish. Evidence of future pain and suffering and permanent disability must be established with reasonable certainty and must not be left up to speculation or conjecture. Volunteer Transp., Inc. v. House, 357 Ark. at 103, 162 S.W.3d at 461. In Volunteer Transport, our court reversed an award of damages where the only evidence offered to prove the nature, extent, and permanency of appellee’s injury was his own self-serving hearsay testimony. Id. at 103, 162 S.W.3d at 460. Similarly, in the instant case, Appellees did not offer any evidence other than their own self-serving testimony to prove the nature, extent, and permanency of their injuries. The court in Volunteer Transport also noted, “Furthermore, the record is silent as to how the trial court arrived at the damage amounts.” Id. at 104, 162 S.W.3d at 461. Similarly, in the instant case, it appears the circuit court arrived at the $500,000 figure merely at the suggestion of counsel for Appellees. The following colloquy occurred between counsel for Appellees and the court at the hearing on damages:
Counsel: ... So I think in this situation the pain and suffering and the mental anguish that follow are quite significant. I don’t know if you want me to give you a number that we’re asking for or if you want to decide that yourself since you are the fact finder, I guess, in this situation. If you want a number, we’ll give you a number, or we can leave it to your discretion.
The Court: Well, [counsel], I’m not going to tell you how to try your case. You may make any argument you want to.
Counsel: Okay. If I may have a moment, your Honor.
The Court: Sure.
[A discussion was had off the record.]
Counsel: Your Honor, as I was discussing, the pain and suffering and the mental anguish are probably the biggest elements here, and when you combine those with the special damages that we’ve put into evidence, I would think — and this would include not only his pain and suffering and mental anguish but Mrs. Jones’ loss of consortium, but a total damage award of $500,000 I think in this case would be fair and reasonable. In light of his ordeal through this we believe that’s a fair judgment.
The Court: All right. Court will be in recess.
Counsel: Your Honor, I don’t know if this needs to be on the record, but I did prepare a precedent if you want to look at it.
The Court: Ok. I’ll take it.
[A recess was had.]
The Court: Mr. and Mrs. Jones, I’m going to grant you judgment against the defendant, Dr. Lisa McGraw, in the amount of $500,000. [Counsel], here is your judgment.
The above colloquy provides no insight as to how counsel or the court arrived at the figure of $500,000, a figure over ten times the amount of Appellees’ actual out-of-pocket medical bills and lost wages. Therefore, based on this record, we must hold that such an award is arbitrary and not supported by sufficient evidence. We reverse and remand this matter for a new hearing on damages.
Affirmed in part; reversed and remanded in part.
Glaze, J., concurring.
Hannah, C.J., Corbin, and Gunter, JJ., concurring in part; dissenting in part. | [
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Donald L. Corbin, Justice.
Appellant Vernon Kinchen appeals an order of the Pope County Circuit Court granting Appellee Michael Wilkins’s request for declaratory relief and enjoining a special election. On appeal, Kinchen argues that: (1) the text of the city ordinance that he submitted constituted a legally sufficient ballot title; (2) the inclusion of the incorrect city ordinance number did not render the referendum petition insufficient; (3) the Pope County Election Commission had no discretion to vary the language of the proposed ballot title; (4) the official ballot prepared by the Commission was legally insufficient; and (5) the trial court erred in permanently enjoining the Commission from holding an election upon the referendum petition. As this case pertains to election procedures, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(4). We affirm.
The facts underlying this case are as follows. Wilkins is a real estate developer who petitioned the City of Russellville to rezone certain property located at 2134 Marina Road from R-l residential zoning to a planned unit development. The rezoning would allow Wilkins to construct fifteen condominiums on the property. As a result of Wilkins’s request, the City of Russellville passed Ordinance No. 1866, rezoning the Marina Road property to allow for planned unit developments.
Kinchen, who was opposed to the rezoning, began circulating a petition for referendum seeking to refer Ordinance No. 1866 to the citizens of Russellville for a vote on or before the biennial regular election occurring on November 7, 2006. After obtaining 1,569 signatures, Kinchen turned the petition in to Kathy Collins, Russellville City Clerk, so that she could verify the signatures as belonging to registered voters. Thereafter, Collins was able to duly certify 1,241 signatures, thereby ascertaining that enough signatures had been gathered to place the referred measure on the ballot for the November 7 General Election. Collins then notified Dale Brown, Chairman of the Commission, that the referendum petition had been certified.
The Russellville City Council decided to call a special election to refer Ordinance No. 1866 to the voters. The special election was scheduled for October 11, 2005. In preparation for the upcoming election, the Commission began to prepare a ballot. Commissioner Brown contacted Michael Robbins, Kinchen’s attorney, and informed him that neither a proposed ballot nor ballot title had been submitted with the documentation received from the City Clerk. Robbins informed Commissioner Brown that he would be glad to prepare a proposed ballot and subsequently forwarded a proposed ballot that contained the entire text of Ordinance No. 1866.
After receiving the proposed ballot, Commissioner Brown gave it to Commissioner Alex Streett so that he could review it. In doing so, Commissioner Streett determined that the petition circulated by Kinchen erroneously referred to Ordinance No. 1886, rather than Ordinance No. 1866. Commissioner Streett, who was also concerned that no ballot title had been submitted, contacted Tim Humphries, an attorney with the Arkansas Secretary of State’s office, to seek advice on the propriety of the proposed ballot. Humphries told Commissioner Streett that the reference to the incorrect ordinance number was not a fatal defect that would prevent the matter from going to the voters. As to the issue of the ballot title, Humphries told Commissioner Streett that he had no authority to prepare a ballot title and that he was restricted to the language contained in the petition. Humphries then suggested that the Commission use the title of the ordinance itself as the ballot title, which the Commission did.
On September 13, 2005, Wilkins filed suit seeking to enjoin the special election. In his complaint, Wilkins alleged that Kinchen failed to submit a ballot title to the Commission and that the ballot was insufficient due to the fact that the ballot title drafted by the Commission was nothing more than the title of Ordinance No. 1866. Kinchen filed a cross-claim against the Commissioners, in their official capacity, seeking to temporarily enjoin the special election until such time as the Commission prepared a proper ballot.
The trial court held a hearing on September 20, 2005. Both parties argued that the ballot title, as drafted by the Commission, was insufficient. Kinchen, however, argued that it was his intent that the text of the ordinance be used as the ballot title. Further, Kinchen argued that the trial court should require the Commission to postpone the election until such time as a sufficient ballot was prepared. At the conclusion of that hearing, the trial court ruled from the bench that it was granting Wilkins’s petition and enjoining the special election. A written order memorializing that ruling was entered on September 27, 2005. From that order, comes the instant appeal.
As a threshold issue, this court must address Wilkins’s claim that the instant appeal is moot. As a general rule, the appellate courts of this state will not review issues that are moot, because to do so would be to render an advisory opinion and this we will not do. Allison v. Lee County Election Comm’n, 359 Ark. 388, 198 S.W.3d 113 (2004). Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. We have recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
In the recent case of Watts v. Searcy County Board of Elections, 364 Ark. 452, 220 S.W.3d 642 (2005), this court refused to address the merits of an appeal that involved an election that had already-been held. In determining that the case was moot, this court concluded that the appellants failed to seek expedited consideration of the case. Additionally, the court held that the issues presented in the appeal did not raise considerations of substantial public interest that might prevent future litigation.
The instant action is distinguishable from the situation presented in Watts. It is true that the special election scheduled for October 11, 2005, has passed but the matter may still be presented for consideration in the next general election scheduled for November 7, 2006. Even though the trial court’s order granted Wilkins’s complaint for declaratory relief that requested both a temporary and permanent injunction, the order only enjoins the city clerk and the Commission from holding the special election. Because the issues presented in this case regarding the ballot title and its sufficiency may arise again, this court will address the merits of the present appeal.
Turning now to the merits of Kinchen’s arguments, the first issue raised is whether the text of the city ordinance is a sufficient ballot title. Kinchen argues that it was his intent to use the text of Ordinance No. 1866 as the ballot title but because the city clerk failed to attach a copy of the ordinance to the materials she sent to the Commission after certifying the referendum petition, the Commission failed to properly use the text as the ballot title. In support of his argument, Kinchen avers that there is no prohibition against submitting the entire text of a particular measure as a ballot title as long as it satisfies the other requirements that a ballot title be intelligible, honest, and impartial. Kinchen’s argument in this regard fails.
Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law. Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). Ballot titles cannot omit material infor mation that would give the voter serious ground for reflection; they must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004).
It is axiomatic that the majority of voters will derive their information about a proposed measure from the ballot title immediately before exercising the right of suffrage. Parker, 326 Ark. 123, 930 S.W.2d 322. Thus, a ballot title must be intelligible, honest, and impartial so that it informs the voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Id. Even in light of our liberal approach to determining the sufficiency of a ballot title, this court must consider whether information omitted from the ballot title is an essential fact which would give the voter serious ground for reflection on whether to vote for the measure. Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994); Bailey, 318 Ark. 277, 884 S.W.2d 938. The ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title. May, 359 Ark. 100, 194 S.W.3d 771.
Although this court has never addressed the specific argument of whether the text of an ordinance would be a sufficient ballot title, in Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968), this court stated that a complete abstract of an act to be referred would be impracticable. See also Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 (1934) (holding that a ballot title need not be so elaborate as to set forth the details of the act).
Regardless of whether the entire text of an ordinance can be properly submitted as a ballot title, as Wilkins points out, the ordinance itself fails to include relevant information that would allow the voter to make an informed decision. Specifically absent is any attempt to define the existing or proposed zoning designations contained in the ordinance. The ordinance refers to the current zoning as “R-l residential use” and does not explain what a “planned unit development” is. Also absent from the ordinance is a description of where the affected property is located. The metes and bounds used in the ordinance will in no way enable a voter to ascertain the location of the affected property. Further, as Wilkins points out, the only differences in the current ordinance and all other rezoning ordinances used by the city are: (1) the ordinance number; (2) the metes and bounds legal description of the property at issue; and (3) a reference to the zoning categories involved.
Accordingly, regardless of whether it is proper to use the entire ordinance as a ballot title, the ordinance itself does not sufficiently apprise the voter of information necessary to making an informed decision in the voting booth; thus, the text of Ordinance No. 1866 is an insufficient ballot title.
Next, Kinchen argues that the use of the wrong ordinance number in the referendum petition did not render it insufficient. Wilkins argues that the use of the wrong ordinance number is a fatal flaw because any voter who took the time in advance of the election to research the ordinance would be voting on the wrong issue. Although this issue was raised in the complaint filed by Wilkins, it appears from a review of the record that this specific argument was abandoned. At the hearing, the parties limited their argument to the issue regarding the use of the text of the ordinance as the ballot title. No argument was raised by either side regarding the reference of the wrong ordinance number and its effect on the referendum petition. Consequently, this point on appeal is procedurally barred as it was not raised below. Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005).
For his third point on appeal, Kinchen argues that the Commission had no authority to vary the language of the proposed ballot title that he submitted. Wilkins counters that Kinchen failed to submit a ballot title and because of that the Commission was required to create a ballot title utilizing the exact language of the ordinance itself.
Pursuant to Amendment 7 of the Arkansas Constitution, when a petition for a constitutional amendment is filed, the exact title to be used must be submitted by the petitioner with the petition filed with the Secretary of State and the State Board of Election Commissioners, who, in turn, certify the title to the Secretary of State. See also Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). Just as a ballot title must be submitted for a statewide referendum, so must one be submitted to a local election commission for a local referendum petition.
The problem in the instant case is that there was a disagreement over whether Kinchen submitted a ballot title at all. As previously stated, Kinchen claimed that he intended to use the text of the ordinance as the ballot title. As this court has already determined, however, the text of Ordinance No. 1866 was not a legally sufficient ballot title. Thus, any action of the Commission in varying the ballot title had no impact on the sufficiency of the ballot title in this case, and Appellant’s argument on this point is without merit.
As his fourth point on appeal, Kinchen argues that the proposed ballot prepared by the Commission is legally insufficient as it fails to convey any information upon which the voter can make an informed decision. This issue was raised by Kinchen in his cross-claim where he requested that the Commission be ordered to prepare a legally sufficient ballot title. A review of the record reveals that the trial court did not rule on Kinchen’s cross-claim, and it remains outstanding. Thus, any ruling by this court on this argument would result in an improper advisory opinion. See Allison, 359 Ark. 388, 198 S.W.3d 113.
Finally, Kinchen argues that it was error for the trial court to permanently enjoin the Commission from holding an election upon the referendum petition. Wilkins counters that the trial court’s permanent injunction was proper because the time for filing the petition has passed and because the text of the ordinance cannot properly be used as a ballot title, the election must be permanently enjoined.
At the hearing, the following colloquy took place between the court and Wilkins’s counsel:
By The Court: Well I think, based on what I have seen here, there’s — there are too many problems. I think both sides need to be able to have a fair determination of what the people want and in the situation it’s in right now I don’t think you can do that.
So I am going to grant Plaintiff s petition. I assume that’s what, injunctive relief?
By Mr. Peel: Declaratory judgment and injunctive relief.
By The Court: That the election be enjoined from going forward; that there are too many discrepancies and problems with the procedure that’s been followed here and the fairness and the opportunity for people to know exactly on what they are voting on is obviously cloudy at this stage; and probably in the.interest of everybody it’s better that this matter not be presented to the voters at this time.
The written order subsequently entered in this case states as follows:
1. The Complaint for Declaratory Judgment and Injunction should be granted.
2. The Pope County Election Commission and the City Clerk for the City of Russellville be and hereby are enjoined from conducting the early voting, absentee voting or other voting relating to the special election to be held on October 11,2005.
As previously stated, Kinchen’s cross-claim is still pending. There has been no permanent injunction entered in this case. Accordingly, Kinchen’s argument on this point is without merit.
Affirmed.
Glaze, J., dissents.
The petitions circulated contained a verbatim copy of the text of the ordinance but mistakenly referred to the ordinance as No. 1886.
The special election was passed through Ordinance No. 1880 and referred to the incorrect Ordinance No. 1886 as being the subject of the special election.
The dissent opines that the trial court lacked authority to enjoin the October 11, 2005 special election because Ark. Code Ann. § 7-9-111 (h)(1) (Supp.2005) mandates that the referendum petition be submitted at the next regular general election. This issue was neither raised nor argued either to the trial court or this court and, as such, cannot form the basis for this court to reverse the order of the trial court. It is a well-setded principle of appellate law that we will not make a party’s argument for him, nor raise an issue sua sponte unless it involves the jurisdiction of this court to hear the case. See Arkansas Dep’t of Human Servs. v. Schroder, 353 Ark. 885, 122 S.W.3d 10 (2003); Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002); R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). Nor do we consider this issue involving section 7-9-lll(h)(l) one of subject-matter jurisdiction that we can raise on our own. | [
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Per Curiam.
John Joplin, a full-time, state-salaried, public
defender for Sebastian County, Arkansas, was appointed by the trial court to represent Appellant, Ronald Ray Tryon, an indigent defendant, for charges of possession ofmethamphetamine with intent to deliver, possession of drug paraphernalia and theft by receiving. On January 31, 2006, Appellant was found guilty and sentenced to life in the Arkansas Department of Corrections. A notice of appeal was timely filed and the record has been timely lodged in this court.
Mr. Joplin now asks to be relieved as counsel for Appellant in this criminal appeal, based on the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state salaried public defenders were ineligible for compensation for their work on appeal) and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam) (relieving Appellant’s court-appointed public defender and appointing new counsel on appeal).
Since the time of those decisions, however, the law was changed by the General Assembly. Act 1370 of 2001 provided in part: “Persons employed as full-time public defenders who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005).
Mr. Joplin’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Greg Knutson will be substituted as attorney for Appellant in this matter. The Clerk will establish a new briefing schedule. | [
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Per Curiam.
Appellant Moses Jones filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to docket the appeal based on a failure to comply with Ark. R. App. P.-Civ. 5(b). Rule 5(b) concerns the extension of time within which to file the record and provides:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rale or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A)The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B)The time to file the record on appeal has not yet expired;
(C)All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D)The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E)An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
See Petras v. State, 363 Ark. 373, 214 S.W.3d 264 (2005); Camp v. State, 362 Ark. 100, 207 S.W.3d 454 (2005).
The circuit judge found that appellant had shown good cause for granting an extension of time, and he extended the deadline to September 4, 2006; however, there is nothing in the order to indicate that “[a]ll parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing,” as required by Ark. R. App. P.-Civ. 5(b)(1)(C).
This court has made it very clear that we expect strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See Petras, supra. Accordingly, we remand this matter to the circuit judge for compliance with Rule 5(b)(1)(C).
Remanded.
Gunter, J., concurring.
Glaze, J., not participating. | [
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Annabelle Clinton Imber, Justice.
This is a case of first impression involving the interpretation of the Arkansas Rules of Professional Conduct, more specifically Rule 1.18 (2006). The question raised on appeal is whether the circuit court erred in disqualifying attorney James L. Tripcony and his law firm from representing Appellant Sharon J. Sturdivant in a post-divorce custody proceeding against Appellee Timothy L. Sturdivant. We affirm the order of the circuit court.
A summary of the relevant facts is as follows: On February 15, 2005, the Pulaski County Circuit Court entered an amended decree and order that gave Timothy physical custody of his minor children from Sunday evening of every week until Thursday evening, as well as alternating weekend visitation. At that time, Sharon’s attorney of record was Dee Scritchfield and Timothy’s attorney of record was Linda Shepherd.
Two months later, on April 25, 2005, James L. Tripcony filed his entry of appearance as Sharon’s attorney of record in the divorce proceeding. Timothy’s counsel sent a letter to Tripcony, notifying him that the Tripcony Law Firm had a conflict ofinterest that would require his immediate withdrawal as Sharon’s attorney. Specifically, the letter stated that Timothy had consulted with Heather May of the Tripcony Law Firm about a change of custody before he retained the Shepherd Law Firm to represent him in the same matter. After receiving the notice of a potential conflict, Sharon’s attorney filed a motion for relief from order.
According to testimony elicited at a hearing on the motion, Timothy retained Linda Shepherd to represent him in the divorce proceeding after a “lengthy consultation” with Heather May of the Tripcony Law Firm about his desire to seek a change of custody. May took notes during the consultation and Timothy gave her a copy of a journal in which he had recorded matters involving him, Sharon, and the children. He also disclosed facts that were not in the journal and told May everything he knew regarding the children and his concerns about his former wife. The journal was eventually disclosed to opposing counsel in the earlier custody proceeding that culminated in the entry of the February 15, 2005 amended decree and order. Finally, Timothy confirmed that he did not retain the Tripcony Law Firm to represent him in the custody proceeding.
Tripcony advised the court that when he was notified of the potential conflict, he and May checked their office files to find out whether Timothy had been in the office. Upon discovering that Timothy had indeed consulted with May, Tripcony consulted the newly revised rules of professional conduct concerning prospective clients. See Ark. R. Profl Conduct 1.18 (2006). He further stated that he and May reviewed her notes and determined that they had no information that would be harmful to Timothy. Following his review of May’s consultation notes and the Arkansas Rules of Professional Conduct, Tripcony concluded that disqualification would not be warranted under Rule 1.18.
The circuit court ruled otherwise in an order entered on September 1, 2005, that disqualified Tripcony and his law firm from representing Sharon. Specifically, the court found that prior to Shepherd being retained by Timothy in the change-of-custody proceeding, Timothy had consulted with, received legal advice from, and provided confidential information to May concerning the custody proceeding. From that order, Sharon filed a timely notice of appeal.
In matters involving the disqualification of attorneys, this court has jurisdiction pursuant to Ark. R. App. P. - Civil 2(a)(8) (2006). Additionally, this case presents significant issues needing clarification and development of the law, as well as significant issues concerning the construction of rules; therefore, jurisdiction is also proper pursuant to Ark. Sup. Ct. R. 1-2(b)(5) & (6) (2006).
We review a trial court’s decision to disqualify an attorney under an abuse-of-discretion standard. Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). An abuse of discretion may arise by an erroneous interpretation of the law. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).
The Arkansas Rules of Professional Conduct are material in disqualification proceedings. Berry v. Saline County Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). As this case involves the interpretation of the rules of professional conduct, our standard of review is to read the rules as they are written, and interpret them in accordance with established principles of rule construction. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). It is our responsibility to decide what a rule means, and we will review the circuit court’s construction de novo. Id. We are not bound by the circuit court’s decision; however, in the absence of a showing that the court erred in its interpretation of the rule, that interpretation will be accepted as correct on appeal. Id. Language of a rule that is plain and not ambiguous must be given its obvious and plain meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a rule provision. Id.
Furthermore, in reviewing the circuit court’s factual find- ■ ings, we must determine whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence; a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003).
For her sole point on appeal, Sharon asserts that the circuit court erred when it applied Rule 1.9 of the Arkansas Rules of Professional Conduct to disqualify Tripcony and his law firm. She claims that disqualification of her attorney is not warranted under Ark. R. Profl Conduct 1.18. As support for that claim, she asserts that the Tripcony Law Firm received no information that could be “significantly harmful” to her former husband.
Recently, we adopted the revised Arkansas Rules of Professional Conduct. See In Re: Arkansas Bar Association - Petition to Revise the Arkansas Rules of Professional Conduct, 361 Ark. Appx. 451 (2005). The revised rules contain Rule 1.18, which specifies the duties to a prospective client. Rule 1.18 provides as follows:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Rule 1.9, which deals with duties to former clients, states in pertinent part:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
In her brief, Sharon points out that Timothy cited the cases of Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986), and Martindale v. Richmond, 301 Ark. 167, 782 S.W.2d 582 (1990), as well as Rules 1.7 and 1.9 of the Arkansas Rules of Professional Conduct, in support of his motion to disqualify the Tripcony Law Firm. She correctly notes that both cases were decided prior to the adoption of Rule 1.18 and that neither case involved prospective clients. Nonetheless, the cited cases merit consideration in our analysis of the instant matter, especially in view of the specific reference to Rule 1.9 in Rule 1.18(b).
In Gipson v. Brown, supra, we held that an attorney’s previous representation of church elders gave rise to the presumption that confidential disclosures made by them in an earlier matter might be used to their detriment in the current action. We reasoned that if the earlier matter is substantially related to the current action, a presumption arises that confidences of the former client were disclosed to the former attorney. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369. Moreover, the court will entertain the presumption and will not inquire into the nature and extent of the confidences; the confidential disclosures, whether actual or presumed, command the disqualification of the attorney when he or she represents an adverse interest in a related matter. Id.
We addressed a similar situation in Martindale v. Richmond, supra, where the attorney representing the former wife in a child-support proceeding had represented his client’s former husband five years earlier. In Martindale, the attorney claimed that he did not learn about his prior representation of the former husband until five minutes before the scheduled hearing and that such late notice was merely a tactic to force settlement or a delay of the hearing. 301 Ark. 167, 782 S.W.2d 582. The Martindale court reaffirmed the appearance of impropriety as the governing standard in matters involving disqualification:
Here, there is no evidence that [the attorney] actually intended to damage [the former husband’s] defense in the present support proceeding with information or confidences he had previously acquired from [him] during their attorney/client relationship. Nevertheless, the appearance exists that such an abuse could occur and for that reason, [the lawyer] should have declined to represent [the former wife] when he learned that he had represented [the former husband] earlier.
301 Ark. 167, 170, 782 S.W.2d 582, 584.
We further noted that disqualification from subsequent representation is for the client’s protection and can only be waived by the client. Martindale v. Richmond, supra. Indeed, Rule 1.9 specifically states that an attorney who has a conflict of interest cannot represent the adverse party unless the attorney consults with and obtains consent from the former client. Ark. R. Prof 1 Conduct 1.9(a) (2006).
Here, Sharon asserts that Rule 1.18 was adopted in 2005 to give guidance to attorneys in their duties owed to prospective clients, as opposed to Rule 1.9, which deals with former clients. Specifically, she relies upon Rule 1.18(c), which bars an attorney from representing a client with adverse interests to those of a prospective client in a substantially related matter if the attorney “received information from the prospective client that could be significantly harmful to that person in the matter.” Sharon suggests that the circuit court erred in applying Rule 1.9 because its decision was based on an assumption that Heather May received information from Timothy that would be harmful to him in the instant matter. According to Sharon, there is no evidence that the Tripcony Law Firm received information from Timothy that could be significantly harmful to him. For that reason, she contends the law firm should not be disqualified from representing her. As further support for her position, Sharon cites Comment 1 to Ark. R. Profl Conduct 1.18, which states, “A lawyer’s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.”
In applying the provisions of Rule 1.18 to the facts of this case, it is undisputed that Timothy was a prospective client under the terms of Rule 1.18(a) when he consulted with Heather May of the Tripcony Law Firm. Moreover, as a result of that communication, May was prohibited from using or revealing information learned in her meeting with Timothy, “except as Rule 1.9 would permit with respect to information of a former client.” Ark. R. Profl Conduct 1.18(b) (2006). Thus, the duty May owed to Timothy as a prospective client under Rule 1.18(b) would be coextensive with the duty an attorney owes to a former client under Rule 1.9(c). Furthermore, the duty to a prospective client exists regardless of how brief the initial conference may have been and regardless of the fact that no client-attorney relationship ensued. Comment 3 to Ark. R. Profl Conduct 1.18 (2006).
As a lawyer subject to the provisions of Rule 1.18(b), May would also be prohibited from representing a client with interests materially adverse to those of her prospective client, Timothy, in the same or a substantially related matter if she received information from Timothy “that could be significantly harmful to [him] in the matter.” Ark. R. Profl Conduct 1.18(c) (2006). The circuit court correctly concluded that Timothy was a prospective client of the Tripcony Law Firm and that the current action is the same custody proceeding for which Timothy consulted May of the Tripcony Law Firm. Likewise, Sharon does not contest the fact that her interests are materially adverse to those of her former husband, Timothy.
Sharon does, however, contest the circuit court’s finding that, due to the nature of a change of custody proceeding, “detrimental or harmful information would have been obtained or gleaned from [his] conference with Ms. May.” She relies upon the following colloquy between Timothy and Sharon’s attorney:
Tripcony: Do you have any correspondence from Ms. May or anyone else in my firm that would contain any information that you believe would be harmful to your case today?
Timothy: No, Sir.
Tripcony: Are you saying that you told Ms. May things that would be harmful to your case?
Timothy: No - no, sir.
As further support, Sharon reiterates that the contents of Timothy’s journal were disclosed in the earlier litigation between the parties.
Viewing the evidence in the light most favorable to the appellee, as our appellate standard of review requires when a lower court’s findings of fact are challenged on appeal, we cannot say that the circuit court clearly erred in finding that harmful information would have been forthcoming during Timothy’s conference with Heather May of the Tripcony Law Firm about this change-of-custody proceeding. As stated earlier, Timothy testified that in addition to giving May a copy of his journal, he also told her about facts that were not in the journal, and he disclosed everything he knew and his concerns about the children and his former wife. According to Timothy, he acted upon advice received from May during the consultation with her. As to whether May received information that “could be significantly harmful” to Timothy, we agree with the circuit court that a lawyer who consults with a prospective client about a change-of-custody proceeding will necessarily become privy to information that could be used to the disadvantage of that person in the same proceeding. Similarly, the circuit court could reasonably conclude that a prospective client would not know whether the information disclosed during the consultation “could be significantly harmful.”
In our holding, we do not deviate from the principle that a litigant, of course, is entitled to an attorney of his or her choosing. Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995). In the absence of an ethical violation, disqualification can be warranted; it is an available remedy to a trial court “to protect and preserve the integrity of the attorney-client relationship.” Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000) (quoting Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990)). However, it is a drastic measure to be imposed only where the circumstances clearly require it. Id. The principle is not absolute and must be balanced against other considerations such as the issue we have before us today. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).
Based on our review of the record, we conclude that the circuit court’s findings of fact were not clearly erroneous or clearly against the preponderance of the evidence; nor did the circuit court abuse its discretion in disqualifying Tripcony and his law firm from representing Sharon in the custody proceeding.
Affirmed.
It is undisputed that May’s disqualification would also extend to the other lawyers in the Tripcony Law Firm. Ark. R. Profl Conduct 1.18(c). | [
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Donald L. Corbin, Justice.
This is an attorney malpractice case in which Appellant Teresa Ann Davis sued her former attorney Vandell Bland, d/b/a Bland Law Office, for failing to perfect her appeal of a child-support award from Washington County Circuit Court. As this appeal involves attorney malpractice, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(5). We affirm.
The instant action stems from a paternity action in which Corliss Williamson was determined to be the biological father of Davis’s minor son, C.W. Prior to the determination of paternity, Williamson voluntarily paid $5,000 per month in child support. Davis requested that Williamson be required to pay the fifteen percent of his monthly income as established in the Arkansas Family Support Chart. Davis also requested back child support. On September 11, 2002, the paternity court entered a final order determining that Williamson’s net monthly income was $162,970.69, but setting child support at $3,930.82 per month. In so ruling, the paternity court determined that it was necessary to deviate from the fifteen percent as set forth in the family support chart, as C.W.’s actual needs totaled $3,930.82 per month. Moreover, the paternity court noted it was not in C.W.’s best interest to award him an amount of support that so greatly exceeded his monthly needs.
Following entry of the paternity court’s order, Davis retained Bland to represent her on appeal. On October 9, 2002, Bland filed a notice of appeal naming Williamson as Bland’s client and purporting to appeal on his behalf. Realizing his mistake, Bland filed an amended notice of appeal on October 11, 2002, correctly naming Davis as his client and as the appealing party.
On January 7, 2003, Bland filed a motion requesting to extend the time to file the transcript. That same day, the trial court held a telephone conference to discuss the motion, and despite Bland’s failure to participate in that telephone conference, the trial court granted the motion and extended the time to file the transcript until April 9, 2003. However, the trial court’s order granting the extension was not entered until January 8, 2003, ninety-one days after the filing of the first notice of appeal on October 9, 2002. Thus, when Bland attempted to file the record with the clerk of this court, the clerk refused to accept it. Bland subsequently filed a motion for rule on clerk and attempted to blame the trial court and its clerk for failing to timely file the extension order. This court denied the motion for rule on clerk, holding that it was Bland’s responsibility, and no one else’s, to perfect Davis’s appeal.
Davis filed the instant action for malpractice on July 16, 2004, arguing that Bland’s failure to perfect her appeal constituted negligence because, if her appeal had proceeded, the trial court’s award of child support would have been reversed. Davis sought damages in an amount in excess of $1,000,000, arguing that such an amount represented what the appellate court would have awarded her in back and future child support. Bland, in turn, filed a third-party action against Richard Fourt, the paternity court’s court reporter, alleging that he was to blame in failing to timely file the court’s order of extension.
The circuit court entered an order dismissing the complaint against Bland on October 5, 2005. In a letter opinion, the circuit court reasoned that despite Bland’s failure to perfect Davis’s appeal, which constituted attorney malpractice, Davis was unable to prove that but for Bland’s negligence, she would have prevailed on appeal. In so ruling, the court noted that it could not conclude that the paternity court abused its discretion or acted thoughtlessly or without due consideration when it entered the order for child support. Davis filed a timely notice of appeal, and the issue is now before this court.
On appeal, Davis argues that the circuit court correctly determined that Bland committed malpractice, but erred in dismissing her complaint against him on the basis that she failed to prove that she would have prevailed on appeal. According to Davis, the paternity court erred in setting child support at $3,930.82 per month in light of Williamson’s monthly net income and monthly expenditures on himself and his wife. Davis further argues that the paternity court erred in determining that any amount of support awarded that exceeded C.W.’s actual needs would be contrary to this court’s case law that prohibits an accumulation of capital for the child. Finally, Davis argues that the paternity court’s award was in error because a father should have to provide the same standard of living for his minor child that he himself enjoys.
An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of his or her client. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003). In order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiff damages. Id.; Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996). In order to establish damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Mack v. Sutter, 366 Ark. 1, 233 S.W.3d 140 (2006); Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). To do this, Davis must prove the merits of the child-support issue within the context of the attorney-malpractice case. Id. Bland did not file a reply brief in the instant case.
In reviewing this issue, it is necessary for the trial court to act as an appellate court would act and review the decision under the same standard the appellate court would use. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). It is well settled that the matter of proximate cause for failure to file an appeal is a question of law to be determined by a judge, not a jury. Id.; see also Daggett, 354 Ark. 112, 118 S.W.3d 525.
As the circuit court noted, Bland failed to submit any rebuttal evidence in response to the affidavit of Davis’s expert, Bob Estes, a licensed attorney, that Bland’s failure to perfect Davis’s appeal constituted a breach of Bland’s duty to exercise a reasonable degree of care in representing Davis. Thus, we agree with the circuit court’s conclusion that Bland’s failure to perfect the appeal constituted legal malpractice. Our analysis does not end here, however. In order to prevail in the instant action, Davis must still prove that Bland’s negligence proximately caused Davis damages. The question then before us is whether the trial court correctly determined that Davis was not damaged, as she failed to prove that she would have prevailed on appeal. To answer this question, we must now review the applicable case law with regard to issues of child support.
The amount of child support lies within the discretion of the court and the court’s findings will not be disturbed on appeal, absent a showing of an abuse of discretion. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). The Arkansas General Assembly has provided that the appropriate method for determining the amount of child support to be paid by the noncustodial parent is by reference to a family support chart. Id. Arkansas Code Annotated § 9-12-312(a)(2) (Repl. 2002) states:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
In order to ensure that the support amounts are appropriate for child-support awards, the family support chart is revised every four years by a committee appointed by the Chief Justice of this court. In Re: Guidelines for Child Support, 314 Ark. Appx. 644, 863 S.W.2d 291 (1993) (per curiam). The committee is also responsible for establishing the criteria to be evaluated when deviating from the use of the chart amount. Id.
The family support chart is more accurately identified as Section VII of Supreme Court Administrative Order No. 10, In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002) (per curiam), which became effective on February 11, 2002, and applies to the child-support award at the crux of this case. Administrative Order No. 10 sets out the definition of income for child-support purposes and the manner of calculation of support. It also requires the parties to execute affidavits of financial means and lists factors the court should consider when determining support at variance to the chart. Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be more appropriate. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Stewart v. Winfrey, 308 Ark. Til, 824 S.W.2d 373 (1992); see also Ark. Code Ann. § 9-14-106 (Repl. 2002). Any deviations from the chart amount, however, must include written findings stating why the chart amount is unjust or inappropriate. Smith, 341 Ark. 590, 19 S.W.3d 590. In sum, the court may grant more or less support if the evidence shows that the needs of the child require a different level of support. Id.
Section V of Administrative Order No. 10 sets forth the following factors to be considered when deviating from the amount set by the chart: food; shelter and utilities; clothing; medical expenses; educational expenses; dental expenses; child care (including day care or other expenses for supervision of children necessary for the custodial parent to work); accustomed standard of living; recreation; insurance; transportation expenses; and other income or assets available to support the child from whatever source. The guidelines then list what are called additional factors. They are: the procurement and maintenance of life insurance, health insurance, dental insurance for the children’s benefit; the provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children; the creation or maintenance of a trust fund for the children; the provision or payment of special education needs or expenses of the child; the provision or payment of day care for a child; the extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; the support required and given by a payor for dependent children, even in the absence of a court order; and where the amount of child support indicated by the chart is less than the normal costs of child care.
The Child Support Guidelines provide that when the payor’s income exceeds that shown on a table included in the chart, the trial court is directed to apply a percentage of the payor’s weekly or monthly income to establish a presumptively reasonable level of support. At the time of the instant paternity action, the presumptive amount based on the chart would have been fifteen percent of Williamson’s monthly income. Based upon the trial court’s determination that Williamson’s net monthly income was $162,970.69, the presumptive amount of child support pursuant to the family support chart would have been $24,445.60. The paternity court, however, determined that such an amount was neither reasonable nor in the best interest of C.W. Upon reviewing the paternity court’s extremely thorough order, we cannot say that the paternity court abused its discretion in this regard.
The order awarding child support in this case detailed the method utilized by the paternity court in arriving at the amount of Williamson’s monthly income. Moreover, the order specifically reviewed each of the monthly expenses incurred by Davis in connection with support of C.W. and determined whether such expenses were reasonable. The paternity court also pointed out that Davis, who has a master’s degree in education and was pursuing a second master’s degree, has the ability to earn at least $36,000 per year, which must be considered as other income available to support C.W., as it is both parents’ obligation to support their child. The paternity court further noted that Williamson was responsible for maintaining insurance on C.W., as well as paying all costs not covered by insurance. In addition, the trial court noted tha.t Williamson maintains a $4,000,000 life insurance policy, which is an asset of an irrevocable trust, with C.W. entitled to thirty percent of the trust upon Williamson’s death, and also maintains an educational trust for the benefit of C.W. that at the time of the hearing held a value of $93,458. After considering numerous factors, the paternity court reasoned:
To apply a straight 15% of Mr. Williamson’s net monthly income would clearly be unjust, inappropriate and not in the best interest of C.W. First, the actual needs of C.W per month are $3,930.82 as analyzed above. Not only does that monthly figure meet all of C.W.’s actual needs, it allows him to enjoy a very comfortable standard of living that he has enjoyed since his birth while living with his mother. Second, granting Ms. Davis the straight 15% of Mr. Williamson’s net monthly income, would result in monthly child support in the amount of $24,445.60 and could not be totally expended each month to provide for the actual monthly needs of C.W., age seven, but would be used for Ms. Davis to accumulate wealth and capital for C.W’s benefit upon his majority. A grant of child support in the amount of $24,445.60 would result in a redistribution of wealth from Mr. Williamson to Ms. Davis, which is unjust and inappropriate, and prohibited under Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000).
The paternity court went on to conclude that awarding child support in the amount of $24,445.60 per month was not in the best interest of C.W. According to the paternity court, granting an amount in excess of that needed to cover the child’s reasonable needs would not impart a work ethic on C.W., nor was it in his best interest to give him everything that he wanted.
Upon review of the paternity court’s order, it is apparent that the paternity court adhered to the guidelines of Administrative Order No. 10 when deviating from the presumptive amount of child support. Moreover, the paternity court analyzed the needs of C.W. and set the award of support at an amount that would cover those needs. Davis’s argument that the court misapplied Smith, 341 Ark. 590, 19 S.W.3d 590, is immaterial. Nothing in Administrative Order No. 10 requires the noncustodial parent to pay excess support so that the custodial parent can accumulate such amounts for the benefit of the minor child. As we stated in Smith, the purpose of child support is to provide for the reasonable needs of the child. Thus, any argument by Davis that the paternity court misconstrued our holding in Smith is unavailing.
Also unavailing is Davis’s reliance on Ceola v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003), for the proposition that C.W. is entitled to a standard of living identical to his father’s. In Ceola, the court of appeals rejected the appellant’s argument that the trial court’s order of support based on a percentage of his income was excessive. In discussing the circuit court’s award, the court of appeals noted that one of the bases for the award was the reasoning that the minor child was entitled to a lifestyle similar to the one enjoyed by the father. Nowhere in the opinion, though, is there a holding that requires child support be calculated to provide a child with a standard of living identical to the noncustodial parent’s standard of living. As the support guidelines state, an award of support should consider an “[ajccustomed standard of living.” In Re: Administrative Order No. 10, 347 Ark. Appx. at 1070. This factor was considered by the paternity court who reasoned that C.W. would continue to enjoy a comfortable standard of living based on the support awarded. In sum, we cannot say that paternity court abused its discretion in awarding child support in the amount of $3,930.82.
Having determined that Davis would not have prevailed on her appeal of the child-support award, we affirm the circuit court’s order dismissing Davis’s malpractice action against Bland.
Affirmed.
The trial court also dismissed the third-party complaint against Fourt. That action is not subject to the present appeal. | [
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Per Curiam.
The temporary restraining order is dissolved for failure to join the Bryant School District, a necessary party under Ark. R. Civ. P. 19 (2006), prior to the issuance of the temporary restraining order. Failure to join the Bryant School District before the temporary restraining order was issued constituted a plain, manifest, clear, and gross abuse of discretion. See King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996), Arkansas Game & Fish Comm’n v. Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006). Accordingly, the petitions for writ of certiorari by the Arkansas State Board of Education, et. ah, and the Bryant School District are hereby granted.
Glaze, J., concurs. | [
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Annabelle Clinton Imber, Justice.
In August 2005, Appellant Willie Edward Morris was tried before a jury and convicted of the rape and kidnapping of L.L., a teenage girl. At trial, the State was allowed to introduce evidence concerning the rape and kidnapping of another victim, A.T., pursuant to Ark. R. Evid. 403 and 404(b) (2006). Morris was convicted on both charges, and because Moms was a habitual offender with two previous violent felony convictions, he was sentenced to life imprisonment for the rape conviction and to a thirty (30) year sentence for the kidnapping conviction, to be served concurrently with the life sentence. Morris appeals from his convictions, raising one point on appeal — that the trial court erred in his trial for the offenses committed against L.L. when it allowed the prosecution to introduce evidence concerning the rape and kidnapping of A.T. pursuant to Ark. R. Evid. 403 and 404(b). We find no error and affirm.
On the afternoon of Tuesday, February 10, 2004, L.L. who lived in the Hillcrest area of Little Rock, arrived home from school and, after spending some time at home, left her house to purchase a Coke from the Kroger on nearby Beechwood street. On her way to and from the store L.L. used a shortcut that lead through an alleyway, which ran between a wall of the Pulaski Heights Methodist Church and a series of backyards. On her way home, while she was cutting through the alleyway, L.L. was stopped by a man who grabbed her arm and asked her to come with him. She refused to accompany him, and the man allegedly said “don’t make me hurt you” while indicating that he had something concealed in his pocket, which L.L. believed to be a gun. The man pulled L.L. further back down the alleyway into a recess in the wall, and he began asking her questions such as her age, her name, and where she lived. He then touched L.L.’s breasts and forced her to perform oral sex on him, stating that if she complied he would let her go home and that he wouldn’t hurt her. After she performed oral sex on him for approximately 10 minutes he released her, and she ran home; he did not ejaculate when he raped her. The assault allegedly occurred around 6 or 7 p.m., and the entire encounter lasted approximately twenty minutes. Upon arriving home, L.L. told her younger sister about the assault and called the police. However, while waiting for the police to arrive, L.L. called a friend and left home; thus, she did not file an official report with the police at that time. She also did not tell her parents what happened that day.
On Sunday, February, 15, 2004, at approximately 1 p.m., L.L. decided to leave her house and walk back to the Kroger in an effort to “face her fears.” During her walk, L.L. saw the same man who had assaulted her five days before. The man began following her, slowly gaining on her. When he came within approximately ten feet of her, L.L panicked and walked into the street, hailing a woman in a car, who then took her home. L.L. did not get any contact information from the woman who drove her home and when she arrived home, L.L. ran into the house and told her father what happened. L.L. and her parents then called the police, this time giving a full report of the events of February 10 and 15.
L.L. identified her assailant to police as a tall black male, who was approximately 30 years old with medium skin, full lips, a protruding jaw, and a light mustache and facial hair. L.L. also stated that the man was wearing a hunter-green windbreaker jacket, jeans, and a dark baseball cap that was either black or navy blue. L.L. later picked Appellant Morris out of a photo line-up con ducted by the Little Rock Police. L.L. was 16 years old at the time of the assault; she was approximately 5 feet tall, weighed 100 pounds, and had blonde hair.
On February 26, 2004, in the Ridge Road area of North Little Rock, A.T. was dropped off at her bus stop and began walking home by her usual route. She crossed paths with a man who showed her a gun and told her to turn around and walk with him. A.T. began walking with the man out of fear, assuming that if she complied with his wishes he would let her go unharmed. While they walked together, the man asked A.T. questions, such as when her parents got home, what her name was, whether she had a boyfriend, and where she lived. As the two began walking towards A.T.’s house, A.T. noticed that a white “box-like” car was parked near her house. The man asked A.T. to take a ride in the car with him, but she refused and began crying. He told A.T. that if she did not stop crying he would have to take his gun out and, if she just walked another block with him, he would let her go home.
The man then took A.T. to an area behind her house that was not visible from the street. There, he fondled A.T.’s breasts, forced her to perform oral sex on him, and raped her vaginally. He did not ejaculate when he raped A.T. After he was finished, he let A.T. go, telling her if she told anyone what happened, he would return and kill her. A.T. ran home and called her parents, who then reported the assault to the police.
A.T. described her assailant as a very tall, black man, who had slight facial hair. She described the man’s clothing as a greenish jacket and khaki pants. The North Little Rock police showed A.T. the same photo line-up that L.L. had seen and she identified Morris as her assailant. At the time of the assault A.T. was approximately 5 feet tall, weighed 90 pounds, and had blonde hair.
On March 2, 2004, Detective B.T. Carmichael of the North Little Rock Police Department was assigned to perform surveillance in an unmarked car in the area of Ridge Road. He had received a BOLO (be on the lookout) for a suspect meeting A.T.’s description of her assailant and his car. At around 4 p.m. he noticed a white older model BMW being driven by Morris that appeared to be following a school bus. Carmichael began following the car after he determined that the vehicle conformed with the BOLO. Noticing that the vehicle did not have a license plate, Carmichael radioed a marked patrol to stop the car under the pretense of not having a license. Morris was informed that his car met the description of a car used in a recent crime in the area, and, therefore, the officers wanted to talk to him. Morris then went to the police department willingly.
At the North Little Rock Police Department, Morris was interviewed and advised of his Miranda rights by Detective Michael Gibbons. Upon being informed that the interview was part of an investigation into the rape of A.T., Morris repeatedly denied being involved and gave an alibi for being in the Ridge Road area at the time he was picked up. He eventually left the station of his own accord. Meanwhile, Morris’s car was impounded by the North Little Rock police on various traffic violations. Gibbons obtained a search warrant for the car and found a plastic toy gun, a couple of baseball caps, and a receipt from the Kroger on Beechwood, dated February 27, 2004. That same evening, A.T. identified Morris via the photo-lineup, and Gibbons obtained a warrant for his arrest.
Morris was arrested on March 3, 2004, and brought into the North Little Rock Police Department, where Gibbons executed a search warrant on Morris’s person and tried to obtain blood, saliva, and hair samples for DNA testing. According to Gibbons, Morris had shaved his facial hair, trimmed the hair on his head, and shaved his pubic hair since the day before. This complicated Gibbons’s attempts to obtain a sufficient DNA sample of Morris’s pubic hair, and the DNA testing results comparing Morris’s hair with hair found in A.T.’s rape kit were inconclusive. While Gibbons was preparing paper work concerning the DNA search, Morris began crying and kept making comments to Gibbons, saying things like “why was he doing this to him,” and “it was going to ruin his life, marriage, everything.” Morris then insisted that he wanted to talk to Gibbons about the situation, and after being re-Mirandized he made another statement to Gibbons. In the statement, Morris asserted that he had met up with a girl on Ridge Road, but that he had not forced her to do anything. However, when Gibbons accidentally disclosed the fact that the victim was only 14, Morris quit talking and requested to speak to an attorney, and the interview concluded.
Later that day, Morris was transferred to the Little Rock Police Department so that Little Rock police could question him with regard to the rape of L.L. At the Little Rock department, Detective Jason Follett informed Morris that he was suspected of committing a rape in Little Rock and began reading Morris his Miranda rights. It was at this point that Morris spontaneously stated, “he did not rape that woman,” and that the police did not have his DNA and could not convict him without DNA. Follett then proceeded to finish reading Morris his Miranda rights, and Morris said he did not want to say anything else and requested an attorney.
Before trial, Morris filed a motion in limine to exclude the introduction of evidence concerning the rape of A.T. in the trial for the rape of L.L., alleging that to allow this evidence to be admitted would be contrary to the Arkansas Rules of Evidence and would violate his due process rights under the Fourteenth Amendment to the U.S. Constitution. Morris renewed his motion at the preliminary hearing on February 22, 2005. After hearing arguments from counsel regarding the admissibility of the evidence in the trial for L.L.’s rape, the court denied Morris’s motion in limine. The circuit court concluded that the evidence would be admissible to show plan, scheme, motive, preparation and intent, pursuant to Ark. R. Evid. 404(b), but not to show Morris’s propensity to commit rape.
At the trial, Morris renewed his motion to exclude the evidence, and, again, his motion was denied. The State was allowed to admit A.T.’s testimony about the rape and the testimony of the officers who first made contact with Morris as a suspect in A.T.’s rape. The officers’ testimony included details, such as what was found in Morris’s car when he first made contact with police and details that corroborated the victims’ identifications of Morris. At the conclusion of the trial, Morris proffered a jury instruction pursuant to Rule 404(b) that would have only allowed the jury to consider that testimony as proof of motive and intent. The circuit court refused to submit the proffered instruction to the jury; instead, the court adopted the State’s proffered instruction, which allowed the jury to consider the evidence as proof of plan, scheme, motive, intent and preparation.
On appeal, Morris argues that the evidence concerning the rape of A.T. should have been excluded under Rule 404(b) because the evidence did not have any “independent relevance” other than to show his propensity to commit rape. Fie also challenges the admissibility of the evidence under Rule 403, arguing that because the evidence had no other probative value than to prove his propensity to commit rape, its prejudicial effect outweighed any probative value.
I. Ark. R. Evid. 404(b)
Arkansas Rule of Evidence 404(b) allows evidence of other crimes, wrongs, or acts to be admitted for the purpose of showing such things as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, evidence is not admissible under Rule 404(b) to show a defendant’s bad character traits and to show he acted in conformity therewith in the case at bar. For evidence to be admissible under Rule 404(b), it must have independent relevance. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).
Evidence admitted under 404(b) is independently relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). Any circumstance that ties a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible as evidence. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). We have allowed evidence of other similar crimes to be admitted under Rule 404(b) to show that a defendant committed the particular crime in question; however, the standard for admission of evidence under Rule 404(b) is different from the standard for admission of evidence under the doctrine of modus operandi, which requires a greater degree of similarity between the crimes. See Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Admission of extrinsic acts under Rule 404(b) does not need to be “as extensive or striking as is required to show modus operandi.” Id. at 447, 902 S.W.2d at 779 (citing 2 Jack B. Weinstein, et al., Weinstein’s Evidence ¶ 404[12] (1995)).
As with other evidentiary determinations, the balancing of the probative value against prejudicial effect is a matter left to the trial court’s sound discretion, and we will not reverse the trial court absent a showing of a manifest abuse of discretion. Id.; Jackson v. State, supra. “The degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted.” Id. at 447, 902 S.W.2d at 778.
One recent case, Fells v. State, 362 Ark. 77, 207 S.W.3d 498 (2005), presented this court with a situation similar to the case at hand, and is therefore instructive here. In Fells, the defendant was charged with the rape of S.H., and the circuit court allowed the State to present testimony from R.B., another victim who was raped by Fells. In examining the two rapes, we found the following similarities: (1) In both cases, Fells drove around low income areas and, upon seeing women with nowhere else to go, called them over to his car on the pretense that he thought they were someone else; (2) Fells made small-talk with both women for about thirty minutes and during the conversation discovered their needs, such as a job or a meal; (3) Fells portrayed himself as charming and trustworthy to both women; and (4) When both victims resisted his advances, Fells used his knowledge of their vulnerabilities to his advantage, telling one victim that he would tell her boyfriend and telling the other pregnant victim that he would leave her in a remote area. Id. We affirmed the circuit court’s action, holding that because of the similar circumstances surrounding the two rapes, the testimony of the first victim was admissible to show Fells’s motive, intent, and plan to rape S.H. Id.
We have also upheld the admission of evidence under 404(b) in a variety of other situations where the prior bad acts of the defendant bore substantial similarities to the case in which the evidence was introduced. See Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005) (evidence that youth minister made sexual advances toward a church member admissible to show that his forced sexual interaction with another church member was not consensual); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000) (evidence of similarities in way rape of first victim was perpetrated was admissible to show similar scheme and intent when rape of second victim was committed); Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995) (testimony of first victim, a convenience store clerk, regarding defendant’s rape and attempted murder of her was admissible to prove defendant’s intent to kill a second convenience store clerk several years later).
Flere, in light of our holding in Fells and based upon the degree of similarity between the circumstances surrounding L.L. and A.T.’s rapes, we cannot say that the circuit court abused its discretion by admitting the evidence of A.T.’s rape pursuant to Rule 404(b). Both victims were close in age and similar in appearance. Morris assaulted both victims near their homes during the hours of 4-6 p.m. Both victims were pulled into an area with low visibility from the road and were asked to perform oral sex. Also, Morris asked both victims similar questions, such as their age, name and where they lived. He also indicated to both L.L. and A.T. that he had a weapon and would harm them if they did not comply with his wishes.
The similarities between the rape of A.T. and the case at hand are sufficient to show that Morris not only acted with the motive and intent to rape L.L., but that he also followed a similar plan, preparation, and scheme when perpetrating the crimes. He assaulted similar victims by accosting them in areas where they frequently traveled and at the same time of the day — the early evening hours, a time period that would ensure that the parents of school-aged girls would not be home from work — while indicating that he had a weapon and that the victims would be harmed if they did not comply with his wishes. We therefore hold that the circuit court did not abuse its discretion in allowing the State to introduce evidence of Morris’s other crimes in the instant case, as proof of motive, intent, preparation, plan, and scheme pursuant to Rule 404(b).
II. Ark. R. Evid. 403
Finally, we address Morris’s argument that the circuit court erred by admitting the evidence regarding A.T.’s rape because the danger of unfair prejudice substantially outweighed its probative value. When reviewing a circuit court’s ruling under Rule 403 we apply an abuse-of-discretion standard. Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). In reviewing a circuit court’s ruling under Rule 403, we have noted that “it is likely that evidence offered by the state will be prejudicial to the accused, or it probably would not be offered,” but evidence should not be excluded unless the accused can show that the evidence lacks probative value in view of the risk of unfair prejudice to the defendant. Beed v. State, 271 Ark. 526, 542, 609 S.W.2d 898, 909 (1980). In the instant case, despite the apparent prejudice to Morris, the similarities between the crimes against L.L. and A.T. are sufficient to make this evidence probative on the issue of Morris’s motive, intent, preparation, plan, and scheme. Considering the broad discretion of the circuit court in weighing the probative nature of the challenged evidence against its prejudicial effect, we cannot say that the circuit court here abused its discretion when it allowed the evidence to be admitted under Rule 403.
III. Rule 4-3 (h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions and requests made by either party that were decided adversely to Morris, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
Hannah, C.J., dissents. | [
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Per Curiam.
Michael Todd Davis was found guilty of murder in the first degree and kidnapping and sentenced to consecutive terms of life and forty years’ imprisonment. The appeal from the judgment has been lodged in this court. Appellant Davis is represented on appeal by Thurman Ragar, Jr., Deputy Public Defender. Mr. Ragar now asks that he be permitted to withdraw as counsel on the ground that he is ineligible for compensation for services as appellate counsel.
Act 1370 of 2001, codified as Ark.Code Ann. § 19-4-1604(b)(2)(B) (Supp.2001), provides that persons employed as full-time public defenders who are not provided a state-funded secretary are eligible to seek compensation for appellate work. Counsel here affirms that he is a full-time public defender with a full-time, state-funded secretary. Under these circumstances, he is not entitled to be paid for services in this appeal and his request to be relieved is well founded.
We grant Mr. Ragar’s motion to withdraw and appoint attorney William O. James, Jr., to represent appellant. Our clerk is directed to set a new briefing schedule for the appeal.
Motion granted. | [
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Per Curiam.
Appellant Daniel R. Plunkett, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Lohnes T. Tiner, states in the motion that he admits responsibility for failing to timely file the record.
This court clarified its treatment of motions for rule on the 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.” McDonald v. State, 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 or she has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Tiner 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. | [
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Robert L. Brown, Justice.
Appellant Henry Morgan appeals the order of the circuit court setting aside an attorney’s Hen filed by him and a second order authorizing payment of attorney’s fees to class counsel. Morgan contends on appeal that the dismissal of his attorney’s lien was improper. On cross-appeal, appellees Don Chandler, individually and on behalf of the class, and Lenders Title Company (referred to jointly hereinafter as “Chandler”) claim attorney’s fees from Morgan for filing a nonjusticiable claim. We affirm on direct appeal and on cross-appeal.
On October 31, 2005, Morgan filed a notice of attorney’s lien, in which he claimed to have a common-law attorney’s lien and statutory lien pursuant to Arkansas Code Annotated § 16-22-304 (Supp. 2005), on the settlement and attorney’s fees to be awarded in the class-action lawsuit handled by Todd Turner, a lawyer who was Morgan’s former employee. Morgan’s position has always been that a written employment agreement between Turner and him entitled him to receive 40% of all attorney’s fees collected by Turner from cases that had been initiated during Turner’s employment. The agreement specifically included fees generated by Turner from those initiated cases after the termination of his employment with Morgan. Morgan asserted that he was entitled to $194,000, which represented 40% of the attorney’s fees approved in the class-action settlement.
On November 15, 2005, Turner moved to set aside the attorney’s lien filed by Morgan. Turner maintained that § 16-22-304 applies only to a situation where there has been an attorney’s fee agreement between an attorney and his client. Accordingly, he also moved that the circuit court award him reasonable attorney’s fees pursuant to Arkansas Code Annotated § 16-22-309 (Repl. 1999), on the basis that Morgan had filed a lawsuit that was nonjusticiable.
On December 13, 2005, the circuit court entered a letter opinion and an order permitting Lenders Title Company to pay the $485,000 attorney’s fees agreed to under the parties’ settlement agreement into the registry of the court. On December 14, 2005, the circuit court entered an order setting aside Morgan’s attorney’s lien. In that order, the court found that Morgan was not designated as an attorney for the class certified in this case and that Morgan had not performed legal services for the benefit of any member of the class. As a result, the court determined that Morgan was not entitled to any portion of the court-awarded fee. The court, however, made no ruling regarding Turner’s request for attorney’s fees based on Morgan’s allegedly nonjusticiable claim under § 16-22-309. On December 16, 2005, the circuit court entered an order authorizing payments from the registry of the court to the attorneys involved in the class-action lawsuit.
Morgan filed a notice of appeal, in which he stated that he was appealing from the circuit court’s December 14, 2005 order setting aside the attorney’s lien and the circuit court’s December 16, 2005 order authorizing payments from the registry of the court. Chandler then filed his notice of cross-appeal in which he said that he was appealing from “the Court’s order which did not award the Plaintiffs attorney’s fees and costs against [Morgan].”
I. Attorney’s Lien
Morgan first claims that the circuit court improperly dismissed and set aside his attorney’s lien, and he contends that this court should apply the standard of review for a motion to dismiss pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. Morgan explains that Turner and he entered into a “legal services agreement,” which provided, in pertinent part, that “Morgan shall continue to be entitled to forty percent (40%) of all legal fees collected by Turner which are collected from the clients which continue to employ him for matters which arose prior to the date of separation.” According to Morgan, Turner’s representation of Chandler in the class-action lawsuit against Lenders Title Company began while Morgan and Turner were associated in the practice of law. Relying on Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990), Morgan maintains that the attorney’s lien statute allows for a lien to be enforced against another attorney.
Morgan contends, in the alternative, that if this court determines that the circuit court’s order was actually a summary judgment because of the circuit court’s consideration of matters outside the pleadings, then he claims that Chandler failed to meet proof with proof and that his own affidavit established his entitlement to an attorney’s lien based on his legal services agreement with Turner.
Chandler responds by asserting that the attorney’s lien statute clearly applies only to a dispute between a lawyer and his client. Moreover, he contends that, based on this court’s holding in Butt v. Evans Law Firm, P.A., 351 Ark. 566, 98 S.W.3d 1 (2003), Morgan’s claim is moot because Morgan failed to move for a stay or post a supersedeas bond and the court-awarded attorney’s fees have been fully paid to class counsel. Chandler points out, as an aside, that Morgan’s contractual dispute with Turner is the subject of a separate action filed in a different venue.
We first address the issue of mootness. As noted by Chandler, Morgan’s issue raised on direct appeal may be moot because of the authorized payment of the disputed attorney’s fees to Chandler’s counsel on December 16, 2005, and because of this court’s holding in Butt, supra. In Butt, this court determined that the appellant/intervenor was required to take steps to stay the order awarding attorney’s fees or to post a supersedeas bond to prevent payment of the disputed fees. Because the appellant/intervenor in that case failed to take those steps, this court held that any claim to attorney’s fees that were voluntarily paid was moot.
Similarly, in the instant case, Morgan took no steps to stay the order awarding attorney’s fees, and he did not post a supersedeas bond. Rather, Morgan filed his notice of appeal after the circuit court entered its order setting aside his attorney’s lien and after the court authorized payments from the registry of the court. Based on our reasoning in Butt, it appears that this matter is moot. Our conclusion is bolstered by the fact that the December 16, 2005 order authorized payment of the fees as of the date of the entry of the order. Moreover, in his brief on appeal, Chandler states that the attorneys for the class, including Turner, have received those fees, and this is not refuted by Morgan in his reply brief.
Though the matter appears moot, there is no document of record evidencing the fact that the fees were actually paid. Out of an abundance of caution, we address the merits.
We turn first to the issue raised by Morgan of whether the circuit court’s order was a dismissal order or summary judgment. We conclude that Chandler’s motion to set aside the attorney’s lien is neither a Rule 12(b)(6) motion for failure to state a claim nor a Rule 56(c) motion for summary judgment. See Ark. R. Civ. P. 12(b)(6), 56(c) (2006). Clearly, both rules contemplate a motion being filed with respect to a pleading as defined by Arkansas Rule of Civil Procedure 7(a) (2006). Here, Chandler’s motion to set aside an attorney’s lien was filed in response to Morgan’s notice of lien filed on October 31, 2005. No pleading was involved. Because of this, Morgan’s argument regarding summary judgment and his filed affidavit simply have no relevancy to these facts.
The circuit court’s order setting aside the attorney’s lien in this case was based on the attorney’s lien law, Arkansas Code Annotated §§ 16-22-302 — 16-22-304 (Repl. 1999). This court reviews a circuit court’s interpretation of a statute de novo, as it is for this court to determine what a statute means. See Mack v. Brazil, Adlong & Winningham, PLC, 357 Ark. 1, 159 S.W.3d 291 (2004) (holding that the proper standard of review for the interpretation of the attorney’s lien statutes was de novo). This court has held that it is not bound by the circuit court’s decision concerning an issue of statutory interpretation. See id. In the absence of a showing that the circuit court erred, however, this court will accept the circuit court’s interpretation as correct on appeal. See id.
In matters concerning the meaning of a statute, we look to the intent of the General Assembly. See, e.g., Dep’t of Human Servs. & Child Wefare Agency Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006) (noting that our “basic rule of statutory construction is to give effect to the intent of the legislature”); Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). In the instant case, that intent is laid out clearly and unmistakably in a statute which reads:
It is hereby found and determined by the General Assembly of the State of Arkansas. . . that an attorney should have the right to rely on his contract with his client, and that the Attorney’s Lien Law should be reenacted to protect the contractual rights of attorneys. Therefore, it is the intent of §§ 16-22-302 —16-22-304 to allow an attorney to obtain a lien for services based on his or her agreement with his or her client and to provide for compensation in case of a settlement or compromise without the consent of the attorney.
Ark. Code Ann. § 16-22-301 (Repl. 1999) (emphasis added). This is the statute relied upon by the circuit court in its letter opinion setting aside the attorney’s hen. We agree that there was no agreement between Morgan and Chandler or the class for legal services, which is an express prerequisite for obtaining an attorney’s lien.
In addition, we conclude that Morgan’s reliance on Lockley v. Easley, supra, is misplaced. Morgan’s argument stems from the following language taken from our opinion in Lockley:
The [Attorneys Lien Law] explicitly provides that attorneys may rely on their contractual rights with clients and are entitled to obtain a hen for services based on such agreements. The Attorneys Lien Law also provides that, under appropriate circumstances, the lien may be enforced not only against the client but against anyone, including another attorney, who knowingly settles with an opposing litigant without the consent of the attorney.
Lockley, 302 Ark. at 17, 786 S.W.2d at 576. While Morgan correctly notes that an attorney’s Hen may be enforced against another attorney, he mistakenly assumes that such a lien can be created as a result of an attorney’s contract with another attorney. We said in Lockley that “attorneys ... are entitled to obtain a lien for services based on . . . agreements” with their clients. Id. We did not say that an agreement between attorneys creates the lien. Therefore, while an attorney’s hen may in some instances be enforceable against another attorney, such a lien is not created where there is no attorney/client relationship.
Finally, Morgan’s argument that Chandler was his client by implication appears to be a new argument, and it is well settled that an appellant cannot make an argument for the first time on appeal. See, e.g., Healthcare Recoveries, Inc. v. Arkansas Client Sec. Fund, 363 Ark. 102, 211 S.W.3d 512 (2005).
II. Cross-Appeal
Turning to the cross-appeal, Chandler asserts that the circuit court erred when it denied class counsel’s claim for additional attorney’s fees. Chandler contends that he was entitled to an award of attorney’s fees pursuant to § 16-22-309(a)(l), which provides that a party is entitled to an award of attorney’s fees when he defends against a claim that lacks a justiciable issue. He adds that these attorney’s fees should be awarded because the notice of lien filed lacked merit and because Morgan published nonrelevant, personal, and confidential materials for no legitimate purpose.
We cannot reach the merits of this claim because there is no ruling by the circuit court on the issue of attorney’s fees under § 16-22-309(a)(l). Chandler did raise the issue in his motion to set aside the attorney’s lien, but his failure to obtain a ruling on this matter operates as a waiver of this argument on appeal. See St. Paul Fire & Marine Ins. Co. v. First Bank of Arkansas, 341 Ark. 851, 20 S.W.3d 372 (2000) (holding that First Bank waived the issue of attorney’s fees and a 12% assessment against the insurance company by failing to obtain a ruling on this issue from the trial court); see also Arkansas Wildlife Fed’n v. Arkansas Soil & Water Conservation Comm’n, 366 Ark. 50, 233 S.W.3d 615 (2006) (holding that when an appellant fails to obtain a ruling on an issue from the circuit court, his or her argument is not preserved for appeal because there is no decision of the circuit court for this court to review); Carson v. County of Drew, 354 Ark. 621, 629-30, 128 S.W.3d 423, 429 (2003) (holding that “ [i]t is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below”). Hence, we affirm on cross-appeal as well.
Affirmed on direct appeal. Affirmed on cross-appeal.
Dickey, J., not participating.
The class-action lawsuit involved in this case was Chandler v. Lenders Title Co., which was appealed to this court twice. See Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003) (Lenders Title I); Lenders Title Co. v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004) (Lenders Title II).
The record reflects that on December 2,2005, Morgan filed a separate action in the Clark County Circuit Court against Turner based on the legal services agreement. In that complaint, Morgan alleged the following four causes of action against Turner: (1) breach of contract; (2) conversion; (3) an accounting and inspection of records; (4) a constructive trust. | [
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Jim Gunter, Justice.
This case involves an order granting sanctions under Rule 11 of the Arkansas Rules of Civil Procedure. Appellant Jon Sanford appeals the circuit court’s order imposing sanctions against appellees’ attorney, Jeff Mobley, and ordering Mr. Mobley to pay $1,000 to Mr. Sanford. Mr. Sanford argues that the circuit court abused its discretion by awarding an amount less than he requested in his motion for sanctions. We affirm the order of the circuit court.
Mr. Sanford represented Ms. Dorothy Goodwyn in an earlier lawsuit against appellees Johnnie Belle Morgan Harris and James Harold Harris to set aside a deed granting property owned by Ms. Goodwyn to appellees. In the lawsuit, Ms. Goodwyn alleged that appellees had wrongfully obtained the deed from her and filed it of record without her knowledge or consent. Appellees filed this lawsuit against Mr. Sanford in response to the Goodwyn lawsuit. Appellees alleged that they were the lawful owners of the property, that Ms. Goodwyn had given the deed to Ms. Harris, that Ms. Harris and Ms. Goodwyn went together to have the deed filed of record, and that the allegations in the lawsuit against them were false. Appellees also alleged that the filing of the lawsuit by Mr. Sanford and his actions in pursuance thereof were performed with malice, that the statements were false, and that Mr. Sanford did not make sufficient investigation into the facts before filing the Goodwyn lawsuit. Appellees requested actual and punitive damages in the amount of $650,000.
Mr. Sanford filed a motion for summary judgment; appellees filed a motion for partial summary judgment. On March 1, 2005, the circuit court entered an order denying appellees’ motion for partial summary judgment, granting Mr. Sanford’s motion for summary judgment, and dismissing the case with prejudice. No appeal was taken from that order.
On August 9, 2005, Mr. Sanford filed a motion for Rule 11 sanctions against appellees’ counsel, Mr. Mobley. He alleged that Mr. Mobley was motivated by ill will in filing and continuing the lawsuit and that the allegations in the complaint were not grounded in fact nor warranted by existing law, as evidenced by the court’s order denying appellees’ motion for partial summary judgment and granting his motion for summary judgment. Moreover, Mr. Sanford argued, Mr. Mobley did not identify any principle of current law that should be changed and did not appeal the dismissal of appellees’ case. Finally, Mr. Sanford alleged that he attempted “to prompt” Mr. Mobley to abandon the claims against him and then to resolve his attorney’s fees without filing a motion for sanctions, but Mr. Mobley refused. Because he was unsuccessful in his efforts to prompt Mr. Mobley to dismiss the case voluntarily, Mr. Sanford claimed that he was forced to spend time and incur costs to defend the lawsuit. He asked the court to award him attorney’s fees in the amount of $3,135 and attached billing records recording the time he allegedly spent defending the lawsuit at a rate of $150 per hour.
Mr. Mobley responded to the motion for sanctions, arguing that the complaint was well grounded in fact and properly warranted by existing defamation law. Mr. Mobley also alleged that Mr. Sanford sent a letter to appellees threatening them with additional claims that the appellees maintained were false and defamatory if they did not sign an enclosed deed conveying their property to Ms. Goodwyn. Mr. Mobley stated that he completely investigated the matter before filing a complaint. In addition, Mr. Mobley stated that Mr. Sanford sent a letter to Mr. Mobley over a year before the court ruled on the motions for summary judgment, alleging that the lawsuit “has some adverse Rule 11 potential for you,” and saying that he planned “to seek Rule 11 relief, but will forego it if you [Mr. Mobley] wish to discontinue the matter through a dismissal with prejudice.” Mr. Mobley’s response alleged that he and the appellees felt intimidated and harassed by Mr. Sanford and also felt that his slanderous statements about the appellees were actionable at law. Next, Mr. Mobley argued that an appeal is expensive and the appellees’ decision not to file an appeal was a financial decision, not an admission that they were wrong. Finally, Mr. Mobley maintained that Mr. Sanford’s own mistakes increased the time he spent defending the lawsuit because he erred in his answer to the complaint by admitting that Ms. Goodwyn and the appellees filed the deed jointly. Mr. Sanford spent time filing numerous pleadings to correct the error and to apologize to the court.
The court held a hearing on the motion for sanctions on November 2, 2005, and entered an order on December 27, 2005, stating that Mr. Sanford “should prevail and that his damages should be fixed at $1,000” and ordering Mr. Mobley to pay the sum of $1,000 to Mr. Sanford. This appeal arises from that order.
We review a trial court’s determination of whether a violation of Rule 11 occurred and what the appropriate sanction should be under an abuse-of-discretion standard. Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 666, 121 S.W.3d 147, 153 (2003). In our review, we give the trial court’s determination “substantial deference.” Id.
Mr. Sanford appeals from the circuit court’s order imposing sanctions against Mr. Mobley, claiming that the circuit court erred in not requiring Mr. Mobley to pay to Mr. Sanford the entire amount of attorney’s fees that he requested. Specifically, Mr. Sanford argues that Rule 11 should be administered both to punish the wrongdoer appropriately and to make the victim — Mr. Sanford in this case — whole. He argues that he was not “made whole” because the court’s sanction did not include all of the attorney’s fees he requested.
Mr. Mobley responds, maintaining that this court has already established a primary purpose for Rule 11: to avoid litigation abuse. Mr. Mobley argues that Mr. Sanford’s appeal to suggest another purpose for sanctions violates that basic purpose by continuing to pursue litigation in order to increase his own fees. Mr. Mobley claims that he has admitted his mistake, has not appealed the imposition of sanctions, and has attempted to pay Mr. Sanford to avoid further litigation. The circuit court reviewed the pleadings, held a hearing, and imposed a sanction. Mr. Mobley maintains that the circuit court made its decision because it felt that the appellees had no legal right to sue Mr. Sanford based on his representation of Ms. Goodwyn. Mr. Mobley argues that the circuit judge noted that Mr. Mobley was “a fine lawyer” and that he has “known his reputation many years and I think he overstepped it this time.” He argues that the circuit court did not abuse its discretion in refusing to impose a sanction equal to the amount requested by Mr. Sanford.
We begin our analysis with Rule 11 of the Arkansas Rules of Civil Procedure. Rule 11 provides that, if the court determines that the rule has been violated, “the court, upon motion or upon its own initiative, shall impose upon the person who [violated the rule], an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.” Ark. R. Civ. P. 11(a) (2006) (emphasis added). Section (b) of Rule 11, which describes the method for filing a motion for sanctions, provides that, “[i]f warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the sanction.” Ark. R. Civ. P. 11(b) (2006) (emphasis added).
The language in the rule suggests that, while a sanction “shall” be imposed for violation of the rule, the court is not required to impose an attorney’s fee. Rule 11(a) states that the sanction “may include” an order to pay “reasonable expenses incurred ... including a reasonable attorney’s fee.” Moreover, any fee imposed is limited by the term “reasonable.” In interpreting our own rule, we have looked to the federal courts’ interpretation of federal Rule 11. See Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 159, 901 S.W.2d 826, 830 (1995). The federal Rule 11 is instructive in this case in explaining the nature of sanctions:
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a non-monetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.
Fed. R. Civ. P. 11(c)(2) (2006) (emphasis added). In accordance with this language, we have stated that the primary purpose of Rule 11 sanctions in Arkansas “is to deter future litigation abuse, and the award of attorneys’ fees is but one of several methods of achieving this goal.” Pomtree v. State Farm Mut. Automobile Ins. Co., 353 Ark. 657, 666, 121 S.W.3d 147, 153 (2003).
We note that, while there is nothing inherently wrong with the principle proposed by Mr. Sanford in this case ■ — • that is, to make the victim whole — it is not the purpose of Rule 11. Rather, the purpose of Rule 11 is “to deter future litigation abuse.” Id. Ifin pursuing that purpose the “victim” is made whole, so much the better for the victim. However, Rule 11 concerns sanctioning the wrongdoer and does not require the circuit court either to determine what in fact would make the “victim” whole or to do so. We decline to expand the purpose of Rule 11 in the manner suggested by Mr. Sanford.
Therefore, in determining whether the circuit court abused its discretion in this case, we look at the purpose the circuit court was attempting to achieve: deterring future litigation abuse. At the hearing on the motion for sanctions, Mr. Mobley testified that he had been practicing law since 1952 and had never been sanctioned. His resume includes six years as a special agent with the FBI, eight years as prosecuting attorney, and a term in the Arkansas State Legislature. Mr. Mobley said that, while perhaps he “sued for too much” in this case, he thought his defamation case was legitimate and justified. Finally, after testifying about the letter he received from Mr. Sanford attempting to “prompt” him to settle, he said that he had practiced law for over fifty years and had never written a letter to another attorney threatening him with sanctions.
We hold that the circuit court did not abuse its discretion in setting the amount of sanctions at $1000 rather than $3,135, as requested by Mr. Sanford. First, Rule 11 does not require attorney’s fees to be awarded. Second, the fees requested in this case are not for expenses paid by Mr. Sanford to an attorney, but for his own time. Mr. Sanford did not actually incur these expenses, but would have charged a client $3,135 for the amount of time he expended defending his own lawsuit. Finally, we grant the circuit court “substantial” deference in determining an appropriate sanction for violation of Rule 11. The circuit court did not abuse its discretion in determining that $1,000 was sufficient to deter future litigation abuse in this case. Accordingly, we affirm the decision of the circuit court and deny Mr. Sanford’s supplemental motion for additional fees and costs.
Affirmed.
We will refer to this lawsuit as the “Goodwyn lawsuit.’
We note that Mr. Sanford has also filed with this court a supplemental motion for fees and costs to add an hourly charge for the time he has spent pursuing this appeal and the additional costs incurred in copying and filing his brief. Mr. Sanford alleges in that motion that the new total for these additional costs and his professional time is $6,616.19.
We note that, because Mr. Mobley has not appealed the imposition of a sanction, the only matter before us is the amount of the sanction imposed. | [
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Per Curiam.
Appellee Broderick Antoine Burnett, by and through his attorney, Raymond R. Abramson, has filed a motion to file belated brief, and seeks an extension of time for a period of thirty days in which to file the brief.
On August 1, 2006, the State mailed its brief to Appellee’s attorney. However, the address for the attorney contained an erroneous zip code, such that he did not receive the brief until August 31, 2006. August 31, 2006, was the due date for filing a response. Appellee’s attorney admits that he did not know that this was the due date because he did not know that the brief had been filed until that day.
Furthermore, on June 23, 2006, Appellee’s attorney filed a motion to withdraw as counsel, which this court denied on September 7, 2006. Appellee’s attorney admits that the motion did not contain a request for alternative relief for an extension of time to file brief in the event the motion was denied; however, he believed that Appellee’s brief would not be due until after the court had ruled on his motion to withdraw.
The motion to file belated brief is granted. Appellee has thirty days from the date of this per curiam to file his brief. | [
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Jim Gunter, Justice.
This appeal arises from an order convicting appellant, Christopher Newton White, of two counts of rape, a Class Y felony and a violation of Ark. Code Ann. § 5-14-103 (Supp. 2005), of his two biological daughters from 1999 to 2002. Appellant was sentenced to 420 months in the Arkansas Department of Correction. From this order, appellant brings his appeal and makes five allegations of error. We affirm.
Appellant’s daughters, ANW and AAW, were removed from appellant’s custody in April 2002 because they were homeless. DHS conducted a search for the mother, and she was never found. The girls were placed in foster care, and they saw appellant during unsupervised visits. On October 7, 2002, Detective Debbie Crews of the Rogers Police Department received word that Pam Cash, the girls’ foster parent, called the child-abuse hotline and reported that, after a visit with their father, AAW came back with her underwear saturated in blood, and she was taken to the emergency room. ANW was seven years old, and AAW was six years old at the time of the hotline report. Both girls complained of pain in the vaginal area.
On October 9, 2002, Janet McCutcheon, a forensic interviewer with the Child Advocacy Center (CAC), interviewed AAW, who relayed a story of a bike accident. She stated that no one “touched her in a way that she didn’t like” and that her father did not take her to a doctor. Following the interview, Dr. Karen Farst conducted a medical examination of AAW, and discovered an irregular vaginal notch that Dr. Farst noted was “suspicious” of recent sexual abuse. Dr. Farst also examined ANW, who also had a deep, irregular vaginal notch that could also indicate sexual abuse.
Appellant was interviewed on December 11, 2002, and again on December 17, 2002, and denied any wrongdoing in both interviews. On June 10, 2003, Detective Keith Eoff received a phone call from Jan Bennett, a case worker at the Department of Health and Human Services, regarding ANW. ANW came back from a visit with appellant with a vaginal injury, and she was bleeding. Ms. Bennett said that ANW claimed she had a bike wreck, but ANW further disclosed to her therapist that her father had been touching her. On June 11, 2003, McCutcheon conducted an interview with ANW with the use of anatomically correct dolls. ANW told McCutcheon that her father “had done something bad to her.” She pointed to the penis on the doll and said that appellant’s penis was “longer and fatter” and that it “hurt.” ANW was able to describe in detail the sex act with her father, stating that there was “white stuff” inside her. ANW told McCutcheon that her father threatened her, telling her that if she told anyone, the “sky would fall on her house” and she would die. When asked if anyone else had touched her, ANW spoke of another foster child and said it happened after she was at CAC in October 2002.
McCutcheon later interviewed AAW with the use of anatomically correct dolls. In the interview, AAW revealed that her father touched her “pee pee,” digitally penetrated her, had sexual intercourse, and forced her to perform oral sex. Throughout other interviews, McCutcheon surmised that the two girls were sexually acting out with each other and foster children with whom they came in contact.
On August 25, 2003, the State filed a felony information, charging appellant with two counts of rape, and on April 26, 2005, an amended felony information was filed to include the date of the offenses from 1999 to 2002. Appellant filed a motion pursuant to Ark. Code Ann. § 16-42-101 (Repl. 1999), requesting the court to admit evidence of AAW’s prior sexual conduct with a child in foster care, her stepbrother, and her sister. The State filed a brief in opposition on February 18, 2005. On April 15, 2005, appellant filed a similar rape-shield motion to admit evidence of prior sexual conduct of ANW. That same day, appellant also filed a motion in limine to prevent the introduction of 404(b) evidence.
The circuit court conducted a hearing on April 25, 2005, and denied the motion in limine, motion to set aside, and rape-shield motion. A trial was conducted on April 26, 2005. On May 3, 2005, appellant was convicted of two counts of rape and was sentenced to 420 months’ imprisonment. The circuit court held a new-trial hearing on June 10, 2005, where the circuit court refused to overturn the jury’s verdict and denied appellant’s motion for new trial. Appellant now brings his appeal from his convictions and sentence.
Appellant argues that his convictions should be reversed and dismissed because the State failed to prove its case. Appellant raises this argument in his last point on appeal, but we are required to examine it first. We treat an appeal from the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence, and we must consider sufficiency challenges first in order to protect appellant’s rights against double jeopardy. Jester v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence supporting the verdict, to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The statute under which appellant was convicted is Ark. Code Ann. § 5-14-103(a)(3)(A), which provides that a person commits rape “if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age.” Id. In cases of rape, the evidence is sufficient if the victim gave a full and detailed accounting of the defendant’s actions. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003).
In the present case, there was sufficient evidence to support both rape convictions. Here, both victims stated in their interviews that appellant had sexual intercourse with them, and both girls were under the age of fourteen. In the interview with McCutcheon, AAW said that appellant stuck his “weiner” in her “pee pee,” and it “didn’t feel good.” She further stated that the penetration “hurt” and that she was “scared.” Similarly, during ANW’s interview with McCutcheon, ANW pointed to the penis on the doll and told McCutcheon that appellant “stuck that in and out,” that appellant’s was “longer and fatter,” and that there was “white stuff’ inside her when she went to the bathroom. At trial, AAW, a nine year old at that time, testified that appellant touched her on her “private” with “his private and his hands.” ANW, who was ten years old at trial, testified that her father touched her “private” with “his hand and his private.” Both girls testified that these incidents occurred numerous times. Additionally, Dr. Farst produced reports in which she concluded that the vaginal notches were “highly suspicious” of sexual abuse. Donna Williams Shepherd, a therapist at the Ozark Guidance Center, testified that, after she saw the girls in 2002, they were engaged in much “more sexualized play.”
We have said that the uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction. Drymon v. State, 327 Ark. 375, 378-79, 938 S.W.2d 825 (1997). In light of the testimony of ANW and AAW, as well as the medical evidence produced by Dr. Farst that substantiates this testimony, we hold that there is sufficient evidence to support the rape convictions. Accordingly, we affirm the circuit court’s denial of appellant’s motions for directed verdict.
For his second point on appeal, appellant argues that the circuit court erred in applying the rape-shield statute. Specifically, appellant contends that the circuit court improperly excluded relevant evidence concerning the girls’ sexual knowledge acquired through sexual experiences while in foster care. Appellant asserts that this evidence is relevant to his defense that the girls had been abused while in DFIS custody.
The State responds, arguing that the circuit court properly applied the rape-shield statute and excluded evidence of the minor victims. The State notes that appellant filed a rape-shield motion, seeking only to introduce evidence pertaining to AAW, on January 12, 2005. Fíowever, a rape-shield motion pertaining to ANW is found in the addendum, and we will analyze both rape-shield motions.
The rape-shield statute under which the circuit court has authority to admit evidence of prior sexual conduct is found at Ark. Code Ann. § 16-42-101(b), which provides in pertinent part:
(b) In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Id. Thus, under Ark. Code Ann. § 16-42-101, evidence of a victim’s prior sexual conduct is inadmissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. An exception to this rule exists when the trial court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature. Ark. Code Ann. § 16-42-101(c)(2)(C). The statute’s purpose is to shield victims of rape or sexual abuse from the humiliation of having their sexual conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006). Accordingly, the trial court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the trial court’s decision unless it constitutes a clear error or a manifest abuse of discretion. Id.
In cases involving the rape of a minor, we have uniformly and consistently excluded evidence of the minor’s prior sexual activity because the only two issues to be determined are the fact of the occurrence of the prohibited activity and the age of the minor. Townsend, supra; Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004) (holding that the four-year-old victim’s testimony falls squarely within the ambit of § 16-42-101(b), which excludes evidence of a victim’s prior allegations of sexual conduct with any other person, which allegations the victim asserts to be true). In Townsend, we adopted the following five factors for which a defendant must offer proof to admit evidence of a child’s prior sexual conduct for the limited purpose of proving an alternative source of sexual knowledge: (1) that the prior act clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant’s case; and (5) that the probative value of the evidence outweighs its prejudicial effect. Id.
With this precedent in mind, we turn to the present case. Appellant filed motions to admit evidence of prior sexual conduct of ANW and AAW. At the evidentiary hearing on February 15, 2005, the witnesses included McCutcheon; Katie Friesen, a foren sic interviewer at CAC; Brandy Bruce with the Arkansas State Police; Cara Hinkle with the Arkansas State Police; and Lydia Harrison and Pam Cash, the girls’ foster mothers. Through these individuals’ testimonies, the following prior sexual acts were described: (1) Kyle, a foster child, had intercourse with ANW, and ANW performed oral sex on him; (2) ANW and AAW touched each other; (3) another girl looked at and licked AAW’s genitals; (4) ANW performed oral sex on a boy when she was three- or four-years-old.
We now examine this evidence in light of the Townsend factors. First, we have no proof that these events actually occurred. With regard to the incident involving Kyle, Brandy Bruce concluded that nothing happened between the two children. Cara Hinkle stated that AAW admitted that she falsely accused ANW of touching her because she was mad at her. Second, none of these prior sexual acts closely resemble the allegations that appellant raped these two minor girls. ANW claimed that Kyle had intercourse with her, but Brandy Bruce found that the claim was unsubstantiated. Third, these alleged sexual acts with other minor children are irrelevant to appellant’s having sexual intercourse with his children. Further, his claim that these prior acts go to his defense is meritless in light of the fact that these events allegedly took place after 1999 to 2002, the time that appellant’s offenses occurred. In other words, these allegedly prior acts were not prior to his rape offenses toward these girls. Thus, for the foregoing reasons, we hold that the circuit court properly excluded the evidence of the acts of ANW and AAW with other children.
For his third point on appeal, appellant argues that the circuit court erred in admitting (1) evidence of appellant having an erection during supervised visitation of his children and (2) evidence that he physically abused his daughters. Specifically, appellant contends that, under Rule 402 of the Arkansas Rules of Evidence, the testimony was more prejudicial than probative. The State responds, arguing that the circuit court properly admitted evidence that was relevant to the case.
Rule 403 of the Arkansas Rules of Evidence provides that evidence, even if relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In discussing our standard of review for evidentiary rulings, we have said that the trial courts have broad discretion and that a trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005).
In the present case, the circuit court allowed the testimony of Jan Wallis, a former DHHS employee, regarding appellant’s erection while watching his two girls performing a cheerleading and dance routine. Over defense counsel’s objection, Wallis testified, “I turned and looked at Mr. White, and he had an erection. Ms. Dooley [another caseworker] told me that he had an erection, which made me turn and look at Mr. White.” From the bench, the circuit court ruled:
You’ve made your record. Now what causes a woman to come in and stare at a man’s crotch? Because she’s horny or because somebody directs her attention to it. I will allow it in not for the truth of the matter asserted but to explain the reason why she’s staring at a man’s crotch, so I’m going to let it in, and I will make that admission — that admonition.
The court then admonished the jury, stating:
Now, ladies and gentlemen, I am going to allow Ms. Wallis to testify as to what the other lady told her for the purpose of explaining why Ms.Wallis did what she did and not for the truth of what this other lady said but to explain to you why she then took whatever action she did. Now are we clear on that?
We agree with the circuit court’s ruling on this issue because the evidence at issue falls under the pedophile exception to Rule 404(b). In Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006), we stated:
This court has recognized a “pedophile exception” to Rule 404(b), which allows evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). The rationale for recognizing the exception is that such evidence helps to prove the depraved instinct of the accused. Id. The basis of the pedophile exception to Rule 404(b) is our acceptance of the notion that evidence of sexual acts with children may be shown, as that evidence demonstrates a particular proclivity or instinct. Hernandez, 331 Ark. 301, 962 S.W.2d 756 (1998). For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. See id; Berger, 343 Ark. 413,36 S.W.3d 286. We also require that there be an “intimate relationship” between the perpetrator and the victim of the prior act. Hernandez, 331 Ark. at 308, 962 S.W.2d at 763; Berger, 343 Ark. at 421, 36 S.W.3d at 294.
Hamm, 365 Ark. at 652.
Here, this evidence of appellant’s arousal while watching his girls perform a dance routine demonstrates a “particular proclivity” toward young girls, particularly his two daughters, thereby establishing the “intimate relationship” between the perpetrator and the victims. Hamm, supra. The fact that appellant got an erection, which was noticed by Wallis and another DHHS employee, further demonstrates an unnatural sexual attraction toward his daughters. Thus, there is a “sufficient degree of similarity” between appellant’s arousal at seeing his daughters and his sexual conduct of having intercourse with them. Hamm, supra. Further, the evidence was relevant under Rule 403 because, as the circuit court ruled, it demonstrates why visitation with the girls stopped shortly thereafter. For these reasons, we hold that the circuit court did not err by admitting Wallis’s testimony.
Second, we will address the admissibility of appellant’s physical abuse of ANW and AAW. ANW testified that her father did things that scared her, hurt her, and did not make her feel safe. She also testified that appellant threw her sister against a wall and gave her a bloody lip. She further stated that appellant slapped her and hit her. Additionally, AAW testified that appellant slapped her and put his hand on her mouth. The circuit court admitted this evidence because it was relevant to the girls’ submitting to appellant and keeping the sexual abuse a secret.
We agree with the court’s ruling. We have held that evidence of other bad acts may be admissible to show the victim’s fear of the accused. See Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986). Here, evidence of the appellant’s physical abuse demonstrates that he instilled fear in his daughters and intimidated them by both physical and sexual abuse. Therefore, we hold that the evidence of his physical abuse was properly admitted by the circuit court.
For his fourth point on appeal, appellant argues that the circuit court erred in ruling that the testimony of Donna Williams Shepherd, a therapist at the Ozark Guidance Center, was barred by privilege under Ark. R. Evid. 503. Specifically, appellant contends that this evidence went to the core of his defense and should have been admitted. In response, the State argues that the circuit court properly excluded testimony of privileged communications made to Shepherd under Rule 503. The State asserts that appellant suffered no prejudice with regard to AAW because AAW testified about the privileged communication.
Rule 503 of the Arkansas Rules of Evidence, which details the physician-patient privilege and connected rules, states:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
Ark. R. Evid. 503(b). The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient, and a patient has a privilege to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his mental or emotional condition. Ark. R. Evid. 503(c); Randleman v. State, 310 Ark. 411, 837 S.W.2d 449 (1992). However, Rule 503(b) does not grant a privilege to “any information,” only “communications” between the patient and doctor, and confidential ones at that. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).
Rule 503 further provides in pertinent part:
(a)(4) A communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
Id.
In the present case, defense counsel made the following proffer at trial:
Defense Counsel: She treated or saw both [victims] from a period of April of 2002 up through March of 2003. During the period of time that she counseled with both of them, their, uh, when allegations were made against Mr. White, she changed their treatment plan based on those allegations. She met with the girls. She talked with them about the treatment plan, about sex abuse, read books to them, and the girls both told her I think the whole time she had them that they had not been abused by the father.
After an argument during which the State argued that the testimony was barred under Rule 503 and Ark. Code Ann. § 12-12-518 (Repl. 2003), the circuit court made the following ruling:
The Court: All right, on, on the nurse, she will be allowed to testify as to the condition that she was found and what she did treat. As to Donna Williams, she will not be allowed to testify as to the communications between herself and-the little girls. She will be allowed to testify as to the course of treatment, the type of treatment that she chose to administer in this situation, and she can say why. But it cannot be based — not be based on allegations by the little girls because they weren’t making them. It will have to be because of concern by DHS or whoever had concerns of the child sexual abuse. That’s it. The privilege blocks it. You’ve made your record. If I am wrong, you are covered.
We agree with the court’s rulings for the following reasons. First, with regard to AAW’s testimony, AAW admitted on cross-examination what she told Shepherd after the State played a video of her conversation with Shepherd. Thus, there is no harm to excluding Shepherd’s testimony because the jury had already heard it through AAW’s testimony. Second, appellant’s argument that ANW’s statements to Shepherd were not privileged, as they were part of a forensic investigation, is misplaced. On direct examination, Shepherd testified that the “DHS worker or foster parents were involved” in the family sessions that she conducted. Third, appellant claims that these statements were provided during discovery, thereby eviscerating the privilege. However, Rule 511 of the Arkansas Rules of Evidence provides that “[a] claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.” Here] we do not find where the privilege was claimed prior to the disclosure to the prosecutor. Thus, in all three instances, the testimony should not have been barred and was properly admitted. For these reasons, we hold that the circuit court did not err in its ruling.
For his fifth point on appeal, appellant argues that the circuit court erred in excluding the testimony of defense witness, Dr. Virginia Krauft, because of an alleged discovery violation. Specifically, appellant contends that Dr. Krauft’s observations go to the heart of his defense that his girls suffered sexual abuse from others.
The State argues that the circuit court properly granted its motion to exclude the testimony of Dr. Krauft by asserting appellant did not comply with the rules of discovery by failing to provide any information concerning Dr. Krauft, aside from her curriculum vitae, until shortly before the trial.
Arkansas Rule of Criminal Procedure 19.7(a), which governs discovery violations, provides in pertinent part:
(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.
Id. It is within the trial court’s discretion to employ any one of the listed sanctions under Rule 19.7(a) or one of its own choosing where there is a failure to disclose. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).
In the present case, there was an oral proffer and a written proffer of Dr. Krauft’s testimony. Defense counsel provided to the State a curricum vitae of Dr. Krauft several days before the trial. The prosecutor said that she could not adequately prepare cross-examination or arrange a rebuttal witness based upon the informa tion given to her by the defense. The State requested that the circuit court exclude Dr. Krauft’s testimony or order her to prepare a report of her findings. Defense counsel produced Dr. Krauft’s work product rather than a formal report. The circuit court granted the State’s motion to exclude Dr. Krauft’s testimony, ruling from the bench that it would not allow the defense “to thwart the rules of discovery” by failing to reduce Dr. Krauft’s findings to a writing.
At trial, the defense proffered a report with Dr. Krauft’s findings, which were labeled Defendant’s Exhibit #3, which contained redacted information, and Defendant’s Exhibit #4, which contained the unredacted information. In these reports, Dr. Krauft takes issue with the interviews conducted by McCutcheon and Ozark Guidance. The circuit court stated:
As I understood Dr. Krauft’s testimony, she pointed out that the folks in her profession are of the opinion that children are extremely susceptible to being influenced by the actions and words of adults. Now, does anybody need an expert to tell them that? I don’t think so. In fact, that is common knowledge. . . . But has she related anything to the facts of this case, the techniques used in interviewing the children? No. It is not related to this case whatsoever .... So I heard nothing here today that causes me to believe that this is the type of testimony that is needed by either side.
Arkansas Rules of Evidence 702 and 703 govern the admission of testimony of expert witnesses. Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Id.
Rule 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Id.
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. Ark. R. Evid. 702.
Here, defense counsel should have properly prepared Dr. Krauft’s findings and given them to the State well in advance of the trial so that the State could prepare its cross-examination and any rebuttal witness. Moreover, the circuit court was correct in noting that Dr. Krauft’s findings did not provide anything more than common knowledge. In Defendant’s Exhibits #3 and #4, Dr. Krauft stated that she claimed that McCutcheon lead the children with her questions and then “had a story.” As the circuit court noted, Dr. Krauft failed to suggest how she would have conducted the interviews of these children. Thus, the circuit court was correct in determining that an expert witness was not necessary. Based upon our standard of review, we hold that the circuit court did not err in its ruling on this issue. Accordingly, we affirm on this point.
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Betty C. Dickey, Justice.
The Appellant, Dorsey Ainsworth, signed a plea agreement on June 26, 2001, admitting to charges of conspiracy to deliver a controlled substance and possession of drug paraphernalia. The Union County Circuit Court accepted the plea agreement, sentenced him to five years probation for each count, fined him $2,000 on the conspiracy count, imposed court costs of $150, and sentenced him to eighty hours of community service. Apparently, no judgment and disposition order was entered, and the only records reflecting the oral pronouncement of the sentence were the plea agreement, a criminal docket sheet, and a circuit court time-pay sheet. Ainsworth met with his probation officer during 2001. On September 16, 2002, a petition to revoke probation was filed against Ainsworth, and he was eventually arrested and detained for three weeks in July 2004. While he made some payments towards his fines, on August 10, 2004, Ainsworth filed combined motions to dismiss the petition to revoke probation and to dismiss all criminal proceedings. On July 19, 2005, he filed an amended motion on the same bases. A hearing on the motions was held on November 22, 2005. On December 6, 2005, the trial judge signed an order denying the Appellant’s motions to dismiss and denying the petition to revoke, and then announced that a judgment and disposition order would be entered nunc pro tunc. On December 8, 2005, the nunc pro tunc order referencing the Appellant’s previous guilty pleas and subsequent sentences was entered in the trial court. However, the order reduced Ainsworth’s fines from $2,000 to $1,000. The Appellant filed a timely notice of appeal, appealing the denial of his motions to dismiss and the trial court’s entry of the nunc pro tunc order.
The Appellant’s first point on appeal is: The criminal proceedings against the appellant should be dismissed as void because of a lack of a timely entered judgment.
The Appellant first contends that Ark. Code Ann. § 16-90-105 (Repl. 2006) requires that a judgment of conviction be entered within thirty days of a trial court’s finding of guilty and that the failure to enter the judgment within thirty days of his guilty plea renders the judgment void.
Ark. Code Ann. § 16-90-105 provides in pertinent part:
§ 16-90-105. Guilty verdict; sentencing
(a) Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilt if tried by the circuit court without a jury, sentence may be announced.
(b) The judgment of the court may be then and there entered for sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court not more than thirty (30) days thereafter, at which time probation reports may be submitted, matters of mitigation presented, or any other matter heard that the court or the defendant might deem appropriate to consider before the pronouncement of sentence and entry of the formal judgment.
This court reviews issues of statutory construction de novo, as it is for the appellate court to decide what a statute means. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). The basic rule of statutory construction is to give effect to the intent of the legislature. Arkansas Dep’t of Economic Development v. William J. Clinton Presidential Foundation, 364 Ark. 40, 216 S.W.3d 119 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.
This court has held that it construes court rules using the same means, including canons of construction, as are used to construe statutes. Gannett River Pub. v. Ark. Dis. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990) (citing N. Singer, 3A Sutherland Statutory Construction, 67.10 (4th ed.1986); Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). Here, guidance may be had from the prior construction of our old Rule of Criminal Procedure 36.4, (now Ark. R. Crim. P. 33.2) which contained language almost identical to that found in section 16-90-105, and provided in pertinent part:
Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilty if tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . .
In Hoke v. State, 270 Ark. 34, 603 S.W.2d 412 (1980), we were called on to construe Rule 36.4, and in so doing stated the following:
The written judgment was signed, nunc pro tunc, on August 24, 1979, and entered of record. The defendant contended below by a motion to vacate, and contends here, that the judgment is void and he is entided to an absolute discharge because the judgment was not entered within the 30 days specified in Criminal Procedure Rule 36.4 (1976). The rule is obviously not mandatory, not only because it specifies that the sentencing and judgment “may” be postponed for not more than 30 days, but also because the nunc pro tunc entry of judgments actually rendered earlier has long been the practice in Arkansas. It cannot have been the intent of the rule to permit a convicted felon to escape punishment altogether merely because the judgment was not reduced to writing within 30 days.
We agree with the reasoning in Hoke. The use of “may” in section 16-90-105 indicates that the statute is directory and not mandatory, and our longstanding practice of the nunc pro tunc entry of judgments actually rendered earlier likewise so indicates. We further note that no penalty is mentioned in section 16-90-105 for the failure to enter a judgment within thirty days. For the forgoing reasons, we agree with the trial court’s ruling that section 16-90-105 does not require the voiding of a judgment entered more than thirty days after a court’s acceptance of a guilty plea.
Ainsworth was jailed for a period of three weeks in 2004 for failing to comply with the terms of his probation, and he was also made to pay $900 toward the fines imposed by the judgment. At the time of his detention and the payments, there is no evidence that the judgment pronounced in 2001 had been entered upon record, and thus it had not become effective. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 90 (2003); Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). This fact was acknowledged by the trial court’s denial of the Appellee’s petition to revoke probation.
However, the Appellant also argues that the trial court’s failure to enter the sentence renders all charges against him void and cites Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), in support of that proposition. In that case, we held that when a court grants unauthorized dual judgments of sentence and one is imposed and served and the other is the suspension of a sentence, there is an election by operation of law, and the valid sentence is the one actually imposed, while the other is void.
That situation does not exist here. The Appellant has cited to no authority that requires the voidance of all sentences improperly entered, and our legal precedent such as Hoke, supra, as well as strong public policy concerns, dictate that we decline to do so here. The Appellant admits his guilty plea, and his actions subsequent to the plea, such as his meeting with the probation officer and the partial payment of his fine, indicate that he was operating under the assumption that the judgment against him was valid. Ainsworth was well aware of his guilty plea, its acceptance by the court, and the penalties imposed as a result of that plea. Thus, he has failed to show how he has been inconvenienced or prejudiced by the entry of the nunc pro tunc judgment. For the forgoing reasons, the trial judge’s ruling denying Appellant’s motion to dismiss all the criminal charges against him is affirmed.
The Appellant’s second point on appeal is: The trial court erroneously entered a nunc pro tunc judgment against the appellantfour years later.
An order or a judgment nunc pro tunc may be entered upon proof that such order or judgment was made and not entered, and such fact may be proven by oral evidence or written memoranda like any other fact might be proven. Piggott Junior Chamber of Commerce, Inc. v. Hollis, 242 Ark. 205, 412 S.W.2d 595 (1967).
It is well settled in Arkansas that a court of record has the authority to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. See Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (1979); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). The rendition ofajudgmentis ajudicial act on the part of the court, while the entry of a judgment is a ministerial act performed by the clerk. Norfleet v. Norfleet, 223 Ark. 751, 268 S.W.2d 387 (1954). We have said that nunc pro tunc orders may be entered to correct a misprision of the clerk, but that the trial court cannot change an earlier record to correct something that should have been done but was not. Bradley v. French, 300 Ark. 64, 776 S.W.2d 355 (1989) (quoting Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989)). Our standard of review for the entry of nunc pro tunc orders is abuse of discretion. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999).
In the present case the record indicates that judgment was pronounced upon Ainsworth in open court on July 26, 2001, and that his sentence included five years probation and a $2,000 fine for possessing a controlled substance with intent to deliver, but that no judgment and disposition order could be located thereafter. The absence of a judgment and disposition order indicates that someone has erred, but it is not discernable from the record whether the judge failed to provide the clerk with an order, whether the clerk failed to enter the order although one was provided, or whether some other error occurred.
Ainsworth’s original fine of $2000 for the conspiracy count was reduced to $1000 in the nunc pro tunc order under review here. In her order denying Ainsworth’s motion to dismiss, the trial judge acknowledged that Ainsworth had made some payments towards his fine, and the record reflects that Ainsworth made two payments totaling $900 in 2004. Ainsworth’s fines and costs originally totaled $2,150. While the record is silent, it appears that the $1,000 reduction in the nunc pro tunc order was made by the trial judge to account for Ainsworth’s previous payments, and that is what this court concludes. Therefore, the reduction would not constitute an attempt to change the record to “correct something that should have been done [in 2001] but was not.” Based on the record before us, we find that the trial judge did not abuse her discretion by entering a modified order nunc pro tunc, and thus the entry of that order is affirmed.
The Appellant’s third point on appeal is: The appellant’s right to a speedy trial was violated by the untimely entry of judgment of sentencing, four years later.
The Appellant received no ruling upon this argument from the trial court, and thus it is not preserved for our review. We will not consider arguments raised for the first time on appeal, and without a ruling by the lower court there is nothing for this court to review. Lewellen v. Sup.Ct. Comm. on Prof'l Conduct, 353 Ark. 641, 110 S.W.3d 363 (2003).
The appellant’s fourth point on appeal is: The trial court erroneously sustained the state’s objection to appellant’s question to the probation officer whether a judgment has been entered.
Appellant contends that the trial court erred by sustaining the prosecution’s objection, on the grounds that the question called for a legal opinion, to counsel for Appellant’s questioning the Appellant’s probation officer about the officer’s knowledge regarding the entry of judgment in this case.
The Appellant failed to proffer the officer’s answer to the question, as he was required to do. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). Also, Ainsworth has not shown how he was prejudiced by the exclusion of the testimony, as the trial court’s order recognized that no entry of record could be located in the present case. An appellant must show that he was prejudiced by the exclusion of evidence to successfully challenge that exclusion. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003). For the forgoing reasons, the trial court’s ruling on this point is affirmed.
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Robert L. Brown, Justice.
Appellants Carquest of Hot S ^Springs, Inc., and Sam R. Clark (hereinafter jointly referred to as “Carquest”) appeal from an order of the circuit court denying a motion for class certification. Carquest urges, as one of its points, that the circuit court erred in concluding that it had no subject-matter jurisdiction over the class’s claim for relief and that the claim was not common to the class. We agree with Carquest and reverse and remand this case for further proceedings.
A detailed description of the facts of this case is included in the prior appeal in this matter. See Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 361 Ark. 25, 204 S.W.3d 53 (2005) (“Carquest F’). Suffice it to say that this case began when General Parts, Inc. (“GPI”) filed a replevin action against Carquest on December 6, 1999. Among other allegations, GPI asserted that Carquest owed GPI for certain products sold to and delivered to Carquest by GPI, including a computer system. GPI filed its complaint after Car-quest stopped payment on a $24,000 check for the payment of items purchased from GPI. Carquest responded to the complaint on January 25, 2000, by filing an answer and counterclaim. In its counterclaim, it asserted wrongful termination of contract, breach of the implied duty of good faith and fair dealing, and violation of the Arkansas Franchise Practices Act. On January 8, 2004, Car-quest filed an amendment to its counterclaim and also a motion to proceed as a class action pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. GPI responded by filing a motion for more definite statement in which it claimed that Carquest had been too vague in its allegations regarding the class action and had failed to specify, among other things, the actions that GPI allegedly committed that constituted the harm suffered by the class.
Following the circuit court’s order granting GPI’s motion for a more definite statement, Carquest filed a second amendment to counterclaim and motion to proceed as a class action on February 10, 2004, in which it alleged for the first time that GPI had engaged in an illegal tying arrangement. Carquest described the tying arrangement as a requirement by GPI that Carquest and other members of the class purchase computer hardware from GPI and software from Cooperative Computing, Inc. at a price that was higher than Carquest could have paid elsewhere.
GPI filed a motion to dismiss claims contained in Carquest’s second amendment to counterclaim and motion to proceed as a class action and argued that the illegal tying arrangement referred to by Carquest was governed solely by the Sherman Anti-Trust Act, 15 U.S.C. § 1 etseq., which has a statute of limitations of four years. On April 29, 2004, the circuit judge granted GPI’s motion to dismiss. In doing so, the court ruled that jurisdiction for violations of the Sherman Anti-Trust Act lay solely in federal district court. It also concluded that any illegal tying-arrangement claim was barred by the statute of limitations contained in the Sherman Anti-Trust Act. Regarding state causes of action for tying arrangements, the court determined that no state law existed that prohibited illegal tying arrangements or gave rise to a cause of action related to such arrangements. Carquest appealed the circuit court’s April 29, 2004 order, and this court held that the circuit court’s order was not a final, appealable order and dismissed the appeal. See Carquest I, supra.
On October 12, 2005, the circuit court entered a second order denying Carquest’s motion to proceed as a class. The court found that the sole underlying claim that Carquest contended was common to the putative class was actually a violation of the Sherman Anti-Trust Act. As such, the court found that it was without subject-matter jurisdiction over the underlying federal claim and further held that it did not have jurisdiction over the claim based on pendant state-law claims because Carquest’s state-law claims were not common to the putative class. Carquest filed a notice of appeal in which it appealed from the two circuit court orders dated October 12, 2005, and April 29, 2004.
Though Carquest mounts several arguments for reversal premised on the 2004 order of the circuit court, we reverse on the basis that the court erred in denying class certification in the 2005 order. Before considering the motion to certify the class pursuant to Rule 23, however, we will address whether the circuit court had subject-matter jurisdiction to hear this matter. Cf., Speights v. Stewart Title Guar. Co., Inc., 358 Ark. 59, 186 S.W.3d 715 (2004) (supplemental opinion denying rehearing) (per curiam) (consideration by the court of a Rule 12(b)(6) motion to dismiss is proper prior to consideration of class certification under Rule 23). The circuit court said it did not. We disagree.
Specifically, the circuit court found in its 2005 order that it did not have subject-matter jurisdiction over claims based on violations of the Sherman Anti-Trust Act. The court added that it also did not have jurisdiction over “pendant state-law claims.” It is somewhat vague as to whether the reference to “pendant state-law claims” is to illegal tying arrangements under state law or to the other claims raised by Carquest in its counterclaim. Regardless, GPI contends that the circuit court has no reason to consider the procedural factors related to the class certification under Rule 23 because the court had no subject-matter jurisdiction over any claim dealing with illegal tying arrangements. GPI reasons that because there was no state cause of action that could serve as the basis for the class certification and because the Sherman Anti-Trust Act grants the federal courts exclusive jurisdiction over claims related to tying arrangements, the circuit court was without jurisdiction to consider a tying-arrangement claim.
The circuit court agreed with GPI’s argument. The court made its finding that jurisdiction over illegal tying arrangements rests exclusively in federal court but failed to consider the fact that such arrangements may fall within the purview of the Arkansas Unfair Practices Act, Ark. Code Ann. § 4-75-201 - 4-75-217 (Repl. 2001 and Supp. 2005) (“AUPA”), as argued in Carquest’s supplemental brief in response to GPI’s motion to dismiss. Indeed, other state courts have made it clear that proscription against illegal tying may fall under their state statutes and that federal jurisdiction is not exclusive. See, e.g., Miller’s Pond Co., LLC v. City of New London, 873 A.2d 965 (Conn. 2005) (stating that illegal tying arrangements are prohibited under a Connecticut state statute restricting the restraint of trade); Health Consultants v. Precision Instruments, Inc., 527 N.W.2d 596 (Neb. 1995) (stating that the Nebraska Unlawful Restraint of Trade Act encompasses the prohibition of tying arrangements); Clough v. Adventist Health Sys., 780 P.2d 627 (N.M. 1989) (acknowledging that the New Mexico state antitrust law applies to illegal tying arrangements); Golden W. Insulation, Inc. v. Stardust Inv. Corp., 615 P.2d 1048 (Or. App. 1980) (stating that illegal tying arrangements are prohibited under the Oregon Antitrust Law). The United States Supreme Court has also recognized that federal antitrust laws do not preempt similar state laws. See California v. ARC America Corp., 490 U.S. 93, 102 (1989) (stating that “Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies”).
Carquest urges that our state statutes including the AUPA, supra, the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-201 — 4-88-607 (Repl. 2001 and Supp. 2005), and the Arkansas Franchise Practices Act, Ark. Code Ann. §§ 4-72-201 — 4-72-210 (Repl. 2001 and Supp. 2005), as well as the common-law requirement of good faith and fair dealing may accommodate tying arrangements under their proscription umbrellas. While that is a matter yet to be resolved, what is clear from our review is that jurisdiction over such claims does not rest exclusively in federal court.
But in addition to finding that it lacked subject-matter jurisdiction over tying-arrangement claims, the circuit court goes further in its 2005 order and finds that an illegal tying arrangement cannot be a common liability claim for class-certification purposes under state law because it can only be raised under the Sherman Anti-Trust Act. In making this finding, Carquest contends that the circuit court delved into the merits of its claim, which is impermissible at the class-certification stage. We agree.
Under Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure - Civil (2006), this court has jurisdiction of appeals regarding class certifications. Our standard of review is as follows:
We begin by noting that it is well settled that this court will not reverse a circuit court’s ruling on a class certification absent an abuse of discretion. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002). In reviewing a lower court’s class certification order, “this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification.” Arkansas Blue Cross & Blue Shield, 349 Ark. at 279, 78 S.W.3d at 64. We have held that “neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied.” Id. Our court has said on this point that “a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action” Id. We, thus, view the propriety of a class action as a procedural question. See id.
Van Buren School Dist. v. Jones, 365 Ark. 610, 613, 232 S.W.3d 444, 447 (2006) (emphasis added).
In determining whether a case may proceed as a class action, a circuit court is required to conduct an analysis of the elements included in Rule 23:
(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. . . .
Ark. R. Civ. P. 23(a)-(b) (2005).
In deciding whether Carquest’s counterclaim could proceed as a class action, the circuit court was required only to consider whether the elements of Rule 23 had been satisfied. As reflected in its order, the circuit court determined that the class could not be certified because the commonality requirement was not satisfied. The court said in its 2005 order that “the sole underlying claim that [Carquest] contend[s] is common to the putative class, is a violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq., specifically allegations of illegal tying on the part of [GPI].” This federal claim, according to the court, could not qualify as a common question of law for a state class action because jurisdiction over such matters, as already discussed, rested in federal court.
It is clear, however, that Carquest did expressly argue a state claim to the circuit court based on the AUPA in connection with the alleged illegal-tying arrangement. Because of this, in making the decision that the only common claim alleged by Carquest with regard to an illegal-tying arrangement was a claim under the Sherman Anti-Trust Act, the circuit court apparently decided that Carquest could not raise a state claim under the AUPA. Although the circuit court did not provide an explanation for its ruling, the fact that it discarded Carquest’s AUPA claim in its order amounts to a ruling that the state claim could not prevail. That ruling constitutes an impermissible consideration of the merits of Carquest’s state claim, which this court has steadfastly held is inappropriate at the class-certification stage. See, e.g., Van Buren Sch. Dist., supra; Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005); Speights, supra.
Moreover, to the extent that the circuit court may have also considered GPI defenses to class claims, such as the statute of limitations under the Sherman Anti-Trust Act, it also made a ruling on the merits of the case. See, e.g., BNL Equity Corp. v. Pearson, 340 Ark. 351, 363, 10 S.W.3d 838, 845 (2000) (holding that “any analysis of the limitations defense at the class-certification stage is a merits determination, and, therefore, inappropriate”).
Accordingly, we hold that a liability issue common to the class has been alleged, and we remand this case to the circuit court for further proceedings related to Carquest’s motion for class certification.
Reversed and remanded.
Dickey, J., not participating.
In its original counterclaim, filed on January 25,2000, Carquest actually declared that it “was not required to purchase the computer [from GPI] ” in order to continue doing business under its agreement with GPI. (Emphasis added.) | [
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Per Curiam.
Appellant Kelly Flannery, an inmate in the Arkansas Department of Correction, has filed a pro se motion seeking leave to file a belated appeal from an order of the Greene County Circuit Court terminating his parental rights in his minor children, J.O. and J.O. Pending the outcome of that motion, he has also filed a motion seeking a stay of adoption proceedings that are currently pending in the circuit court.
In his motion, Flannery avers that inmate attorney, Sharon Draper, who represented him during the termination proceedings, did not timely inform him that his parental rights had been terminated, nor that he had the right to appeal such termination. DHHS responds, arguing that even though this court has recognized that an indigent parent has the right to appeal a termination order and to be appointed counsel, Flannery’s motion should be denied, without remanding it to circuit court, because he failed to pursue an appeal with reasonable diligence.
This court has recognized a parent’s right to appeal from a termination order in Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). We have further recognized an indigent parent’s right to counsel on appeal. See Linker-Flores v. Arkansas Dep’t of Human Servs., 356 Ark. 369, 149 S.W.3d 884 (2004) (per curiam). Recently, this court has granted motions for rule on clerk in termination cases, noting:
The impetus for this change is our line of recent decisions that afford indigent parents appealing from a termination of parental rights similar protections as those afforded indigent criminal defendants.
Tyler v. Arkansas Dep’t of Human Servs., 366 Ark. 413, 413-14, 235 S.W.3d 901, 902 (2006) (per curiam). See also Moore v. Arkansas Dep’t of Human Servs., 363 Ark. 205, 212 S.W.3d 1 (2005) (percuriam); Childers v. Arkansas Dep’t of Human Servs., 361 Ark. 227, 205 S.W.3d 795 (2005) (per curiam).
There can be no doubt that indigent parents have been afforded certain protections and rights in pursuing an initial appeal from an order terminating parental rights. Yet, this court has heretofore never addressed a motion to file belated appeal.
DHHS argues that it is in the agency’s best interests, as well as the interests of the minor children, to deny this motion, as granting it would create a dangerous precedent of allowing appeals to be dragged out and preventing permanent placement of the minor children. DHHS avers that this is particularly true in the present case and asserts that Flannery failed to act with reasonable diligence. According to DHHS, the hearing in this matter was completed on February 23, 2006, and that Ms. Draper sent Flannery a letter notifying him of the case’s outcome. The order terminating Flannery’s rights was subsequently entered on March 28, 2006, but Flannery did not contact the circuit court’s office until June 12, 2006. In sum, DHHS claims that Flannery knew how to get in touch with his attorney and should have been diligent in pursuing any appeal.
Despite DHHS’s assertions to the contrary, it is necessary to remand this matter to the circuit court for resolution of certain factual issues. The threshold issue to be resolved by the trial court is when did Flannery receive notice that his parental rights had been terminated. Additionally, there is a question of fact as to whether or not Flannery was notified of his right to appeal the termination order,
Accordingly, we remand this matter to the circuit court with instructions that it be heard and decided no later than October 20, 2006, so the trial court’s findings and order can be filed with this court on or before October 23, 2006. Pending the outcome on remand, we issue a temporary stay of any pending adoption proceedings involving J.O. and J.O.
Motion for belated appeal remanded; motion for temporary stay granted.
In Linker-Flores I, this court also noted that the no-merit standard enunciated in Anders v. California, 386 U.S. 738 (1967), would now be applicable in cases of indigent-parent appeals from orders terminating parental rights. | [
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Per Curiam.
Paul Barron Sr.’s attorney, Phillip Moon, represented Barron at the trial below when he was convicted on January 8, 2002. Mr. Moon filed a notice of appeal on January 18, 2002, but Mr. Moon asserts in a petition for writ of certiorari filed with this court on January 30, 2006, that Barron discharged him as his attorney and authorized a “friend” to obtain his entire file concerning the proceedings in Carroll County Circuit Court. Mr. Moon further asserts that he was discharged by Barron, and he was thereby released from any further obligations regarding Barron’s appeal. In fact, Mr. Moon stated he did not fail in any duty to Barron because Barron had terminated him as Barron’s attorney. However, Mr. Moon now files Barron’s petition for a writ of certiorari, requesting our court to extend the time for the reporter of this case and the Carroll County Clerk time to complete the transcript and record on appeal and to deliver them to this court’s clerk as soon as they are completed.
First, we must mention the obvious: The time for filing the record in this case is decidedly late. Rule 16(a) of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. From the petition for writ of certiorari, Mr. Moon candidly admits the time for filing the transcript is late, but he seems to be of the opinion his duty of representing Barron ended when Barron discharged him.
Of course, Rule 16 does set out the procedure to follow when withdrawing as counsel for a defendant on appeal, but Mr. Moon failed to follow that procedure. Nor did he show cause why he should have been relieved of his appellate duties in this motion. For these reasons, we direct Mr. Moon to comply with this court’s procedure to properly withdraw as counsel in this appeal and to do so within thirty (30) days.
Apparently Barron may seek appointed counsel for his petition, but our court’s rules and procedures provide how Mr. Moon can proceed in this case. | [
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Robert L. Brown, Justice.
Appellants Brenda Faye Robbins and Dale Robbins, her husband, appeal from the circuit court’s order dismissing their complaint against appellees Dr. Arthur Johnson, M.D. and Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center. They raise one point on appeal: the negligence they alleged against Dr. Johnson in their complaint was within a jury’s comprehension as a matter of general knowledge, and, thus, the circuit court erred in dismissing their complaint. We disagree, and we affirm.
The Robbinses’ complaint alleged the following facts. On March 26, 2003, Dr. Johnson performed cervical surgery in the neck of Mrs. Robbins at the Sparks Regional Medical Center in Fort Smith. The surgery performed was for the purpose of correcting a cervical disk herniation and osteophytes at the C4-5 and C5-6 levels of the spinal column. During the surgery, the com plaint alleged that Dr. Johnson “negligently caused and allowed a sharp surgical instrument, a curette, to fall and plunge into her spinal cord, piercing the dura mater surrounding the spinal cord, then piercing the spinal cord itself, resulting in damage to the spinal cord and nerves” of Mrs. Robbins. The complaint continued that Dr. Johnson closed the dural defect with a single suture without consulting her or her husband and without determining the extent of the spinal cord damage.
The Robbinses further alleged in their complaint that Mrs. Robbins has and will continue to suffer physical pain and mental anguish as a result of Dr. Johnson’s negligence in performing the surgery. They asserted that she suffers from numbness and weakness in her hips and limbs. She also suffers from spasms in many of her muscles, joints, ligaments, nerves, and tendons. Mr. Robbins alleged that Dr. Johnson’s negligence has caused him to lose the companionship and consortium of his wife.
According to Dr. Johnson, Mrs. Robbins underwent a cervical disectomy and fusion at levels C4-5 and C5-6. Dr. Johnson wrote to his attorney:
However, during the course of the operative procedure the procedure was complicated by the fact that by using one of the curettes in trying to remove the posterior cervical osteophytes one osteophyte unexpectedly gave way. The area between the vertebral bodies was tight because of the osteophyte on inferior surface of C5 and the superior surface of C6 and in this process the osteophyte unexpectedly gave way allowing the curette to plunge forward penetrating the dura creating a small hole there and it was unclear as to whether spinal cord damage was incurred at that time.
While Mrs. Robbins was hospitalized after the surgery, Dr. Johnson wrote in that same letter that he did not notice any significant neurological defects and that there was no evidence of damage to the spinal cord. At a follow-up visit, Dr. Johnson continued in the letter that on June 3, 2003, Mrs. Robbins complained of intermittent problems with spasms and pain. She was referred to a physical therapist for flexibility and muscle strengthening exercises and continued to receive frequent refills of pain medication. Mrs. Robbins’s next visit with Dr. Johnson was on September 30, 2003. She told him at that time that she continued to have a significant amount of pain in her neck.
On March 10, 2005, Mr. and Mrs. Robbins sent notice to Dr. Johnson and his clinic, Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center, by certified mail, informing them of their intention to file a medical-malpractice action for the injuries that resulted from the cervical surgery. This notice was sent within thirty days of the expiration of the statute of limitations and served to toll the statute for ninety days. See Ark. Code Ann. § 16-114-212(a) (Repl. 2006). On June 22, 2005, within the ninety-day tolling period, Mr. and Mrs. Robbins filed their complaint against Dr. Johnson and his clinic. The complaint stated that an affidavit from an expert in the same or related field, as required by Ark. Code Ann. § 16-114-209 (b) (Repl. 2006), was not necessary in this case, because Mrs. Robbins’s damages “will be absolutely clear and unmistakable to a layperson.”
Dr. Johnson and his clinic moved to dismiss the complaint and argued that the alleged negligence against Dr. Johnson did not lie within a jury’s comprehension as a matter of common knowledge, and, therefore, an affidavit from an expert was required by law to be filed with the complaint. Because the complaint was filed without the required affidavit during the ninety-day tolling period, Dr. Johnson urged that the complaint be dismissed for failure to comply with Ark. Code Ann. § 16-114-212(c)(l) (Repl. 2006).
A hearing on the motion to dismiss was held. At the hearing, Dr. Johnson produced a letter for the court’s review, which he had sent to his attorney on August 11, 2005, and which explained in detail what had happened during surgery. The letter was admitted into evidence, without objection by the Robbinses, together with the Sparks Regional Medical Center consent form that had been signed by Mrs. Robbins prior to the surgery. Dr. Johnson’s attorney read from that letter in court during the hearing.
The circuit court granted the motion to dismiss with prejudice. In its order, the circuit court stated that the alleged negligence in the complaint did not lie within the jury’s comprehension as a matter of common knowledge, and because the complaint had been filed during the tolling period without the required affidavit from an expert, the complaint must be dismissed with prejudice because the statute of limitations had expired. In making its decision, the circuit court said it was relying on Dr. Johnson’s motion to dismiss and his brief in support, the Robbinses’ answer to the motion to dismiss and their brief in support, and “all exhibits produced at the hearing.” From this order of dismissal, Mr. and Mrs. Robbins appeal.
Mr. and Mrs. Robbins claim, as their only point on appeal, that their complaint should not have been dismissed because Dr. Johnson’s malpractice and the resulting damages are clear and unmistakable to a layperson, and, therefore, no expert affidavit was required. Specifically, they contend that the negligence complained of was the inadvertent plunging of the curette into Mrs. Robbins’s spinal cord and that this was the result of “plain clumsiness easily understood by all juries.”
We first consider whether the circuit court’s order was an order for summary judgment or an order of dismissal. In the circuit court’s order granting Dr. Johnson’s motion to dismiss, the court stated that it considered the motion, answer, briefs in support, exhibits produced at the hearing, and all oral arguments made by the parties. By his own statement, the judge admitted that he went beyond consideration of the stated allegations in the complaint. For example, Dr. Johnson’s letter to his counsel describing the surgery was introduced into evidence at the hearing as an exhibit, and the judge said in his order that he considered the exhibits in making his decision.
This court has said:
When a trial court considers matters outside the pleadings, the appellate courts will treat a motion to dismiss as one for summary judgment. Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).
T.J. ex rel. Johnson v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005). We conclude that the circuit court’s order of dismissal was, in truth, an order of summary judgment.
We turn then to a consideration of whether that order should be affirmed. In a medical-malpractice case, the plaintiffs burden of proof is fixed by statute:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
Ark. Code Ann. § 16-114-206(a) (Repl. 2006).
Further, the Medical Malpractice Code provides:
(b)(1) In all cases where expert testimony is required under § 16-114-206, reasonable cause for filing any action for medical injury due to negligence shall be established only by the filing of an affidavit that shall be signed by an expert engaged in the same type of medical care as is each medical care provider defendant.-
Ark. Code Ann. § 16-114-209(b)(l) (Repl. 2006).
This court has discussed the issue of expert testimony in the past:
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
Haase v. Starnes, 323 Ark. 263, 269, 915 S.W.2d 675, 678 (1996) (quoting Davis v. Kemp, 252 Ark. 925, 926, 481 S.W.2d 712, 712-13 (1972)).
Accordingly, it is well settled by § 16-114-206(a) and our case law that expert testimony is not necessary per se in every malpractice case but rather is needed only when the standard of care is not within the jury’s common knowledge and when an expert is needed to help the jury decide the issue of negligence. See Haase, supra.
This court has held on multiple occasions that expert testimony was required because the alleged negligence did not fall within the common knowledge of the jury. See, e.g., Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006) (expert testimony required to demonstrate to the jury why medical instructions from a specialist regarding a blood transfusion for a leukemia patient should have been followed by a family physician); Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002) (directed verdict should have been granted for physician when the expert for the patient’s estate failed to testify about what degree of skill is ordinarily possessed by surgeons in Little Rock when the negligence asserted was the physician’s failure to perform surgery on a cancer patient suffering from free air on the abdomen until over thirteen hours after the physician learned of the surgery consult and the patient passed away during this time period); Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002) (expert testimony required to rebut defense testimony regarding whether a physician has a duty to inform a patient about rare side effects of medication); Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996) (medical decision to leave a piece of drainage tube in a patient’s leg, as opposed to an inadvertent leaving of an object in a patient’s body, presented an issue outside the jury’s common knowledge and required expert testimony); Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (matters relating to the changing of dental implants and treatment of fractured teeth are not matters of common knowledge to a jury); Reagon v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991) (expert required to establish standard of care when physician failed to diagnose appendicitis); Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978) (branchial block procedure was not within the common knowledge of a jury of laymen, and the jury could not find that anesthesiologist was negligent in failing to warn the patient that a lung puncture might occur during the procedure where there was no expert testimony that would have permitted the jury to weigh various types of anesthesia to determine if a warning should have been given).
In the case at hand, Mr. and Mrs. Robbins claim that Dr. Johnson dropped the curette, which caused an injury to Mrs. Robbins’s spinal cord, and that this negligence is within the common knowledge of a jury. However, Dr. Johnson’s explanation of what happened, according to his letter to his attorney, is much different. He argues that the curette, which is spoon-shaped and not sharp, may have penetrated the spinal cord only after an osteophyte unexpectedly gave way. In other words, he contends that he did not merely drop the curette, but that any injury that may have occurred took place while he was removing an osteophyte with a curette.
We conclude that in order for a jury to decide whether Dr. Johnson was negligent, the jury must understand what a cervical diskectomy and fusion is, what instruments are used to perform the procedure, what procedures and risks are involved, and whether Dr. Johnson’s actions proximately caused the injury alleged by the Robbinses. Dr. Johnson’s letter makes it clear that, according to his version of the events, more was involved in this alleged negligence than simply dropping a sharp surgical instrument. We agree with the circuit court that an expert was required for Mr. and Mrs. Robbins to meet their statutory burden of proof.
The question then is whether summary judgment was appropriate. This court has said that when a plaintiff fails to present expert testimony in a medical-malpractice case, that plaintiffs complaint is subject to a motion for summary judgment:
In this case, appellee’s motion for summary judgment was supported by affidavit revealing that appellant could not prove two essential elements of his claim. Appellee met his burden of proving a prima facie case for summary judgment by showing that appellant had no expert to testify as to the applicable standard of care and breach by appellee.
Robson v. Tinnin, 322 Ark. 605, 612, 911 S.W.2d 246, 250 (1995). Mr. and Mrs. Robbins did not produce any expert testimony to support their allegations of negligence. Because we conclude that Dr. Johnson has demonstrated that expert testimony is required in this case, no genuine issues of material fact exist, and Dr. Johnson is entitled to summary judgment as a matter of law. See id.
As a final point, because Mr. and Mrs. Robbins filed their complaint during the ninety-day tolling period without an expert’s affidavit, their complaint was properly dismissed with prejudice. The General Assembly has made that point clear:
(c)(1) If the plaintiff files an action for medical injury during this tolling period without the requisite affidavit required by § 16-114-209(b)(1) and (2), the complaint shall be dismissed and costs, attorney’s fees, and appropriate sanctions as determined by the court shall be assessed.
Ark. Code Ann. § 16-114-212(c)(l) (Repl. 2006). In this case, Mr. and Mrs. Robbins filed their complaint during the tolling period without the required affidavit. The statute of limitations for their cause of action had expired. Judgment with prejudice was appropriately entered in favor of Dr. Johnson.
Affirmed.
According to Dr. Johnson’s brief on appeal, an osteophyte is a bony excrescence or outgrowth, a curette is a spoon-shaped scraping instrument used for removing foreign matter from a cavity, and dura mater is the outer membrane covering the spinal cord.
Though negligence was also asserted for failure to obtain informed consent for correcting the dural defect in their complaint, the Robbinses did not pursue this argument on appeal. Thus, it is abandoned. See Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995) (stating that this court will not address issues not raised on appeal). | [
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Per Curiam.
Appellant, Robert Earl Thompson, has filed a motion for rule on the clerk. Appellant filed the motion on September 8, 2006, and the record was refused because the notice of appeal was filed more than thirty days after appellant’s judgment and conviction order was entered, as required by Ark. R. App. P. — Crim. 2(a)(1). For this reason, we treat appellant’s motion for rule on clerk as a motion for belated appeal. We grant appellant’s motion and refer the matter to the Committee on Professional Conduct.
The order from which appellant seeks to appeal was entered on February 22, 2006. Appellant filed his notice of appeal on March 28, 2006. Appellant now requests a motion for rule on the clerk because the clerk refused to accept the record, as the notice of appeal was tendered outside the thirty-day time period required under Ark. R. App. P.-Crim. 2(a)(1). Appellant’s counsel tookfull responsibility for the untimely filing of the notice of appeal and requested the case to proceed in the usual manner.
This court recently 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:
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. at 116,146 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 this case, appellant’s attorney acknowledges that the notice of appeal was untimely and assumes full responsibility for failing to perfect the appeal. From the record, we find that the attorney was at fault and refer him to the Committee on Professional Conduct. Therefore, we grant the motion for belated appeal, and the complete record should be filed with our clerk within thirty days from the date of this per curiam order. At that time, a briefing schedule will be set. See Miller v. State, 367 Ark. 187, 238 S.W.3d 608 (2006).
Motion granted. | [
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Per Curiam.
Cristi Beaumont, a full-time state-salaried public defender for the Fourth Judicial District, was appointed by the trial court to represent Appellant Fernando Navarro. Beaumont petitioned this court to be relieved as counsel on appeal based on this court’s holding in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), which states that full-time, state-salaried public defenders are ineligible for compensation for their work on appeal. Since Rushing, the General Assembly passed Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005), which states:
A person employed as [a] full-time public defender who is not provided a state-funded secretary may also seek compensation for appellate work from the Supreme Court or the Court of Appeals.
Beaumont did not state in her motion whether she employed a full-time, state-funded secretary and her motion was denied without prejudice. Beaumont now moves again to be relieved as counsel on appeal and states in her motion that she is provided with a full-time, state-funded secretary. Therefore, Beaumont’s motion to be relieved as counsel is granted. Susan Lusby will be appointed as counsel for the Appellant, and the Clerk of the court will set a new briefing schedule.
It is so ordered. | [
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Per Curiam.
Appellant Marcus Lance Rackley, by and
through his attorney, has filed a motion for rule on the clerk. His attorney, Max M. Horner, states in the motion that he admits responsibility for fading to timely file the record.
This court clarified its treatment of motions for rule on the 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.” McDonald v. State, 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, Mr. Horner 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. | [
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Donald L. Corbin, Justice.
Appellants/Cross-Appellees Department of Human Services and Child Welfare Agency Review Board appeal the judgment and order of the Pulaski County Circuit Court ruling that Section 200.3.2 of the Minimum Licensing Standards for Child Welfare Agencies (“Regulation 200.3.2”) violated the separation-of-powers doctrine and, thus, was unconstitutional. Appellees/Cross-Appellants Matthew Lee Howard, Craig Stoopes, Anne Shelley, and William Wagner (collectively known as “Appellees”) cross-appeal asserting that the circuit court erred in holding that the regulation does not violate (1) the right to equal protection and (2) the right to privacy or intimate association. As this case involves issues of statutory construction, first impression, and substantial public interest, jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(l), (b)(1), and (b)(4). We find no error on direct appeal and affirm.
On April 6, 1999, Appellees filed their original complaint in the Pulaski County Circuit Court seeking a declaratory judgment and injunctive relief challenging the validity of Regulation 200.3.2 enacted by the Child Welfare Agency Review Board that same year. Regulation 200.3.2 provides that:
No person may serve as a foster parent if any adult member of that person’s household is a homosexual. Homosexual, for purposes of this rule, shall mean any person who voluntarily and knowingly engages in or submits to any sexual contact involving the genitals of one person and the mouth or anus of another person of the same gender, and who has engaged in such activity after the foster home is approved or at a point in time that is reasonably close in time to the filing of the application to be a foster parent.
Appellees asserted that the regulation was outside of the scope of the Board’s authority and that it was unconstitutional on its face because it violated both the Equal Protection Clause of the United States and Arkansas Constitutions, and the federal and state constitutional rights to privacy and intimate association. Following numerous pretrial hearings, this case came to trial on March 23-25, 2004, October 5 — 6, 2004, and December 20, 2004.
On December 29, 2004, the circuit court issued its judgment, a memorandum opinion, and its findings of fact and conclusions of law. Based upon its findings of fact, the circuit court concluded that: (1) Regulation 200.3.2 does not promote the health, safety, or welfare of children and, thus, is unconstitutional as being in violation of the separation-of-powers doctrine; (2) Regulation 200.3.2 does not violate the equal-protection provisions of the United States and the Arkansas Constitutions; and (3) Regulation 200.3.2 does not violate the plaintiffs’ constitutional right to privacy or intimate association under either the United States or Arkansas Constitutions. This appeal followed.
A. Jurisdiction
Although DHS does not raise the issue of jurisdiction until its reply brief, it must be addressed prior to addressing the merits of the arguments on both direct and cross-appeal. See Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006). DHS’s argument is two-fold. First, it contends that none of Appellees had standing to bring the suit because they had not applied to be foster parents when the suit was filed in 1999. Second, it argues that the Appellees did not exhaust all administrative remedies and, therefore, the court lacks jurisdiction to hear the matter. Upon review, this argument is without merit and we have jurisdiction to review the case.
1. Standing
In order to establish standing, a party must show that he has a right which a statute infringes upon and that he is within the class of persons affected by the statute. Thompson v. Arkansas Social Servs., 282 Ark. 369, 669 S.W.2d 878 (1984). See also Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). This rule applies to regulations, such as the regulation in question here. Id. Moreover, an appellant can have standing to challenge a regulation, even if the appellant had never actually applied for a permit, because to apply for a permit would be futile. See International Bd. of Teamsters v. United States, 431 U.S. 324 (1977); United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814 (9th Cir. 1996).
Here, DHS claims that Appellees lack standing because they failed to apply to become foster parents when the suit was filed. This argument is without merit. First, Appellees did attempt to become foster parents and were turned away because of the regulation’s exclusion. Second, even if Appellees had not applied to become foster parents, they still had standing to bring suit because they are within the class of persons affected by the regulation, and each Appellee’s attempt to become a foster parent would be futile because of the regulation. As such, Appellees had standing to bring suit challenging the regulation.
2. Exhaustion of Remedies
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. Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998); Barr v. Arkansas Blue Cross & Blue Shield, 297 Ark. 262, 761 S.W.2d 174 (1988). However, exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. Id. Consequently, inadequate or futile administrative remedies do not need to be exhausted prior to pursuing other remedies. Id.
Moreover, we have held that a plaintiff can maintain an action for declaratory judgment even if the plaintiff has not requested the agency to rule upon the validity of the rule or regulation in question. McEuen Burial Ass’n v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989). See also Ark. Code Ann. § 25-15-207(d) (Repl. 2002). In McEuen, we explained that section 25-15-207(a) of the Administrative Procedure Act, clearly establishes that:
[I]t is not necessary that the injury already have occurred or that a person show he was affected by it in order to obtain a declaratory judgment. Either the “threatened application” of a rule or the threat of injury will justify a party in seeking to have such regulations reviewed.
Id. at 575, 769 S.W.2d at 417. Thus, we held that, “Although there had been no denial of a certificate to any burial association, it is obvious that some of the associations, as a result of the application of the rules, are threatened with denial.” Id.
Here, DHS argues that Appellees did not exhaust all administrative remedies before proceeding with the present cause of action, and, therefore, we are without jurisdiction to hear the matter. Specifically, DHS claims that no request was made to the Board to repeal the regulation, no administrative hearing was requested, and there was no final agency decision from which to appeal to the circuit court. This argument is without merit because, in this case, (1) it would be futile for Appellees to pursue administrative remedies, and (2) section 25-15-207 provides that an action may be brought in circuit court when a regulation injures or threatens to injure the plaintiff.
Appellees, and all other similarly situated individuals, are completely barred from becoming foster parents because of this regulation. Much like in McEuen, 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, Appellees 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, 335 Ark. 216, 980 S.W.2d 550; 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, 297 Ark. 262, 761 S.W.2d 174. As such, we have jurisdiction to hear the present appeal.
B. Separation of Powers
For its only argument on appeal, DHS argues that the circuit court erred in holding that the regulation passed by the Board violated the separation-of-powers doctrine. Specifically, DHS asserts that the circuit court erred in finding that Regulation 200.3.2 did not promote either the health, safety, or welfare of children and, therefore, violated the separation-of-powers doctrine.
Here, Ark. Code Ann. § 9-28-405(c)(l) (Repl. 2002) delegates to the Board the authority to “promulgate rules and regulations that: (1) promote the health, safety, and welfare of children[.]” The Board passed Regulation 200.3.2 pursuant to this authority; however, the circuit court found that the Board exceeded its authority when it implemented a blanket exclusion of homosexuals and individuals who resided with a homosexual from becoming foster parents. Specifically, the circuit court found that the regulation did not promote the health, safety, and welfare of foster children and, thus, the Board exceeded its authority in legislating for public morality. Upon review, the circuit court did not err in reaching this conclusion and finding that Regulation 200.3.2 was unconstitutional as being in violation of the separation-of-powers doctrine.
In Rose v. Arkansas State Plant Board, 363 Ark. 281, 288-89, 213 S.W.3d 607, 615 (2005), this court reiterated the standard of review for issues of statutory construction, stating:
[W]e review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005); Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002). Thus, although we are not bound by the trial court’s interpretation, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005); Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc., 360 Ark. 32, 199 S.W.3d 656 (2004). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
Pursuant to section 9-28-405(c)(1), the Board only had the authority to enact rules and regulations that promote the health, safety, and welfare of children. Thus, we must now look at whether Regulation 200.3.2 falls within the bounds of this authority. In reviewing the validity of a rule or regulation, this court must give the regulation the same presumption of validity as it would a statute. McLane Co., Inc. v. Davis, 353 Ark. 539, 110 S.W.3d 251 (2003); Department of Human Servs. v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989). In reviewing the adoption of regulations by an agency under its informal 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. Specifically, it is well settled that “an agency has no right to promulgate a rule or regulation contrary to a statute[.]” McLane, 353 Ark. at 546, 110 S.W.3d at 256. See also McLane Co., Inc. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998); Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994).
In the present case, Regulation 200.3.2 does not promote the health, safety, or welfare of foster children but rather acts to exclude a set of individuals from becoming foster parents based upon morality and bias. With regard to the health, safety, or welfare issue, the circuit court made the following pertinent findings of fact:
4. When the Child Welfare Agency regulations were first promulgated in 1997 there was no provision excluding lesbians, gay men, or persons living with such individuals because the Child Welfare Agency saw no need for such exclusion (Stipulated Facts, #6).
6. The Board’s attorney advised the Board that there was no need to enact the exclusionary provision because the preexisting regulations already gave the Board the enforcement power to take care of any concerns and to adequately protect the interests of children (iStipulated Facts, #14).
9. Prior to 1999, there was no prohibition under any Arkansas law or regulation excluding lesbians or gay men or those living with them from being foster parents (Stipulated Facts, #26).
10. The defendants are aware of “homosexuals,” as defined, who have served as foster parents in Arkansas (Stipulated Facts, #27).
11. The defendants are not aware of any child whose health, safety, and/or welfare has been endangered by the fact that such child’s foster parent, or other household member, was “homosexual”, as defined (Stipulated Facts, #28).
12. The State has no statistics indicating that gays are more prone to violence than heterosexuals or that gay households are more unhealthy than heterosexual households (Stipulated Facts, #30).
13. Based on its foster care statistics the defendants do not know of any reason that lesbians and gay men would be unsuitable to be foster parents (Stipulated Facts, #31).
23. The blanket exclusion may be harmful to promoting children’s healthy adjustment because it excludes a pool of effective foster parents.
29. Being raised by gay parents does not increase the risk of problems in adjustment for children.
30. Being raised by gay parents does not increase the risk of psychological problems for children.
31. Being raised by gay parents does not increase the risk of behavioral problems.
32. Being raised by gay parents does not prevent children from forming healthy relationships with their peers or others.
33. Being raised by gay parents does not cause academic problems.
34. Being raised by gay parents does not cause gender identity problems.
37. Children of lesbian or gay parents are equivalently adjusted to children of heterosexual parents.
38. There is no factual basis for making the statement that heterosexual parents might be better able to guide their children through adolescence than gay parents.
39. There is no factual basis for making the statement that the sexual orientation of a parent or foster parent can predict children’s adjustment.
40. There is no factual basis for making the statement that being raised by lesbian or gay parents has a negative effect on children’s adjustment.
41. There is no reason in which the health, safety, or welfare of a foster child might be negatively impacted by being placed with a heterosexual foster parent who has an adult gay family member residing in that home.
46. There is no evidence that gay people, as a group, are more likely to engage in domestic violence than heterosexuals.
47. There is no evidence that gay people, as a group, are more likely to sexually abuse children than heterosexuals.
These facts demonstrate that there is no correlation between the health, welfare, and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual. While DHS argues that the regulation protects the healthy, safety, and welfare of foster children because “we do not know the effect of temporary homosexual parenting,” this argument flies in the face of the evidence presented by Appellees’ experts and the circuit court’s findings of fact. Moreover, DHS admits that, prior to the adoption of the regulation, homosexuals were allowed to be foster parents and no known complaints were ever made in those situations. As such, the circuit court did not err in finding that there was no rational relationship between the regulation’s blanket exclusion and the health, safety, and welfare of the foster children.
Second, Regulation 200.3.2 is an attempt to exclude homosexuals and persons who reside with a homosexual from becoming foster parents based upon the Board’s standard of morality and its biases. Various members of the Board, including Robin Woodruff who introduced the regulation, testified as to their guidance and reasoning behind adopting Regulation 200.3.2. Woodruff testified that, in her opinion, (1) same-sex relationships are wrong, (2) homosexual behavior is a sin, (3) homosexuality violates her biblical convictions, (4) adults who have same-sex orientation should remain celibate, and (5) she would not be a proponent of her children spending time with openly gay couples. James Balcom, another member of the Board, testified that there were three components to his decision to vote to enact the regulation — scientific evidence, his personal beliefs including his religious beliefs, and societal mores. Balcom further testified that he believed gay relationships are immoral and that he has a moral objection to people being in a household where there is a same-sex relationship going on. This testimony demonstrates that the driving force behind adoption of the regulation was not to promote the health, safety, and welfare of foster children, but rather based upon the Board’s views of morality and its bias against homosexuals.
Additionally, DHS admits that “the regulation may protect the morals of our foster children” but claims that it also protects the health, safety, and welfare of the foster children. As shown above, there is no correlation between the blanket exclusion and the health, safety, and welfare of foster children. Thus, the only other underlying purpose behind the enactment of the regulation is morality. The General Assembly did not include, under section 9-28-405 (c)(1), the promotion of morality in its delegation of power to the Board. Consequently, the Board was acting outside its areas of responsibilities when it enacted Regulation 200.3.2, and was in violation of the separation-of-powers doctrine.
In Federal Express Corp. v. Skelton, 265 Ark. 187,197—98, 578 S.W.2d 1, 7 (1979), we explained the separation-of-powers doctrine and stated:
Our government is composed of three separate independent branches: legislative, executive and judicial. Each branch has certain specified powers delegated to it. The legislative branch of the State government has the power and responsibility to proclaim the law through statutory enactments. The judicial branch has the power and responsibility to interpret the legislative enactments. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches. The “Separation of Powers Doctrine” is a basic principle upon which our government is founded, and should not be violated or abridged.
In the instant case, the Board’s enactment of Regulation 200.3.2 was an attempt to legislate for the General Assembly with respect to public morality. Because the Board acted outside the scope of its authority and infringed upon a legislative function, we cannot say that the circuit court erred in finding that Regulation 200.3.2 was unconstitutional as being in violation of the separation-of-powers doctrine.
As we have held that Regulation 200.3.2 is unconstitutional on the basis of separation of powers, we will not address the other constitutional arguments raised by Appellees on cross-appeal because to do so would amount to an advisory opinion. See Dodson v. Allstate Ins. Co., 365 Ark. 458, 462, 231 S.W.3d 711, 715 (2006) (holding “that courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for future conduct”).
Affirmed on direct appeal; cross-appeal moot.
Franklin A. Poff, Jr., Sp.J., joins in this opinion.
Brown, J., concurs.
Glaze, J., not participating.
Subject-matter jurisdiction can be raised at any time. See Arkansas Dep’t of Human Servs. v. Isbell, 360 Ark. 256,200 S.W.3d 873 (2005).
Any person seeking to become a foster parent who has an adult member of his or her household that is a practicing homosexual is within the class of persons affected by the regulation. | [
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Per Curiam.
Appellant Steve Hill, by and through his attorney Dennis R. Molock, has filed the instant motion for rule on clerk. Mr. Molock states in the motion that record was tendered late due to a mistake on his 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.” Id. 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. (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, Mr. Molock 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. | [
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Per Curiam.
On April 25, 2006, judgment was entered reflecting that appellant Leon Harden, III had been found guilty by a jury of possession of cocaine with intent to deliver. He was sentenced to 960 months’ imprisonment. Harden was represented at trial by his retained attorney, Jack R. Kearney. Mr. Kearney filed a timely notice of appeal from the judgment on May 10, 2006, but failed to file a record within ninety days of that notice. Instead, he filed a motion for enlargement of time to file the record on August 9,2006. The circuit court’s order of enlargement of time was entered on August 11, 2006, which was the ninety-third day after the notice of appeal was filed. This order of enlargement of time was, therefore, untimely. See Ark. R. App. P. - Crim. 4(a) (2006); Ark. R. App. P. - Civ. 5(b)(1) (2006). On August 23, 2006, the circuit judge filed a partial record in this matter to begin the appeal process. For the reasons set out in this opinion, we grant the motion for rule on clerk but deny the motion to be relieved as counsel.
Rule 16(a) of the Rules of Appellate Procedure - Criminal provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal. Ark. R. App. P. 16(a) (2006). If a notice of appeal has been filed, exclusive jurisdiction rests in the appellate court to relieve or substitute counsel. Id. It is well settled that under no circumstances may an attorney fail to perfect an appeal by not filing the record when the convicted defendant desires to appeal. Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam); Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000) (per curiam); Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000) (per curiam); Muhammad v. State, 331 Ark. 23, 957 S.W.2d 186 (1998) (per curiam); Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997) (per curiam); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996) (per curiam).
In the instant case, Mr. Kearney filed a notice of appeal. Thus, under Rule 16, he was obligated to represent Harden until such time as he was permitted by the appellate court to withdraw. Mr. Kearney, however, did not act to protect appellant’s right to appeal by filing the record in this case.
We hold, therefore, that Mr. Kearney was at fault for failing to file the record in this matter. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). The motion for rule on clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.
Mr. Kearney has also filed a motion to be relieved as counsel on the basis that the circuit judge remarked at a hearing on June 19, 2006, that he, as counsel, had failed to represent Harden properly. Mr. Kearney says he cannot continue to represent Harden as he has an actual or apparent conflict of interest. We disagree.
Harden has appealed his judgment of conviction on issues other than ineffective assistance of counsel. If Harden’s judgment of conviction is affirmed, and if a petition under Arkansas Rule of Criminal Procedure 37 is filed based on ineffective assistance of counsel, that will be the time for a motion to be relieved as counsel to be filed. In the meantime, we hold that Mr. Kearney shall not be relieved as counsel. Should Harden wish to be declared indigent and for counsel to be appointed, he must file an affidavit of indigency under our Supreme Court Rule 6-6. Should he qualify as an indigent, counsel may be appointed for purposes of this appeal. The motion to be relieved as counsel is denied. | [
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Annabelle Clinton Imber, Justice.
In this case, Appellant Albert Levon Burton appeals the circuit court’s denial of his petition for post-conviction relief under Ark. R. Crim P. 37. Appellant was convicted by a jury of two counts of aggravated assault, one count of criminal mischief, and one count of being a felon in possession of a firearm. The allegations underlying those convictions were that Appellant shot at and hit the car occupied by Wanda and Janet Jones. The convictions were affirmed on direct appeal. Burton v. State, CACR 04-282 (Ark. App. Mar. 2, 2005). In his petition for post-conviction relief, Appellant argued, among other things, that his counsel at trial was deficient for failing to object to the introduction of a prior conviction because it was prejudicial to his case, that counsel was deficient in failing to request severance of the felon-in-possession charge, and in allowing Appellant to be convicted outside of the presumptive sentence range. The circuit court denied the request for post-conviction relief, and Appellant now appeals that order.
I. Failure to Sever the Felon-In-Possession Charge
Appellant’s first point on appeal is that trial counsel was ineffective in failing to request a severance of the felon-in-possession charge. The United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for ineffective-assistance-of-counsel claims:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. at 687. See also Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); Hill v. State, 347 Ark. 441, 65 S.W.3d 408 (2002). Thus, a defendant must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse affect on the defense. Price v. State, supra. In our review, this court indulges in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. The petitioner must show that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt and that the decision reached would have been different absent the errors. Id.
We have frequently remarked on the substantial prejudice resulting from the joinder of a felon-in-possession charge to other charges. In Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993), this court stated:
Where a felon/firearm charge is tried with a second felony, the jury is confronted at the opening of the trial with the stark and highly significant fact that the defendant is a convicted felon. The felon/firearm charge generally has no relevance to the second charge being tried and serves only to sully the defendant in the minds of the jurors.
Id. at 440, 844 S.W.2d at 353. In light of the prejudice resulting from a joint trial, counsel for Appellant should have requested severance of the felon-in-possession charge. The State suggests that counsel’s failure to sever could be considered a tactical decision, citing Price v. State, supra, but the instant case is markedly different from Price. In that case, counsel for the defendant filed a severance motion but ultimately abandoned that motion. The defendant argued that trial counsel’s failure to pursue the motion amounted to ineffective assistance of counsel, but we disagreed, noting the extensive testimony by defendant’s counsel:
[Counsel] conceded at the hearing on the new-trial motion that if he had pursued the motion for severance, it would have been granted. However, he also testified that the reason why he did not pursue the motion was because he discussed the matter with [the defendant] “several times,” and they agreed to try the two cases together and “go for it.” Moreover, [counsel] stated that they weighed the fact that if the cases were severed, the felon-firearm charge would have been tried first and [the defendant] would have been convicted. This meant that the jury would have learned of this new conviction during the sentencing phase of the second-degree murder trial, and if [the defendant] took the stand during the guilt phase, at that time also by way of impeachment. The new conviction would also have been added to his prior convictions for enhancement purposes. Thus, it was [counsel’s] contention that these factors counterbalanced the prejudice arising from a joint trial of the two charges.
Id. at 724, 66 S.W.3d at 663. We concluded that counsel’s actions were not ineffective because they fell within the category of a tactical decision. Id. In contrast, the circuit court in the instant case did not hold a hearing on Appellant’s petition for post-conviction relief. Consequently, the record provides no insight as to why Appellant’s trial counsel failed to file a motion for severance. Without such evidence in the record, we cannot presume that trial counsel’s failure to request severance of the felon-in-possession charge fell within the category of a tactical decision.
Despite recognizing the disadvantage inherent in the joinder of a felon-in-possession charge with other criminal charges, we have often noted that a joint trial of a felon-firearm charge with a second charge does not constitute prejudice in all instances. Sutton v. State, supra; Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). In Ferrell, the defendant was charged with first-degree murder and being a felon in possession of a firearm. This court held that despite the error by the trial court in refusing to sever the felon-firearm count from the murder count, prejudice was not shown because “the evidence of murder against the appellant, with three eye witnesses testifying, was overwhelming.” Id. at 515, 810 S.W.2d at 31. Additionally, in Ferrell, the defendant voluntarily took the stand to testify, thereby subjecting himself to impeachment. Id. While Appellant in the instant case did not take the stand to testify, we can affirm the trial court’s finding that counsel’s failure to request severance was not prejudicial if the evidence against Appellant was overwhelming.
An examination of the record reveals that the evidence of Appellant’s guilt was less than “overwhelming.” At trial, the following witnesses testified: Tammy Jones, who was dating Appellant at the time of the incident; Wanda and Janet Jones, who were Tammy’s sisters; and Bob Paxton, the chief of the police department. Wanda Jones testified that on July 24, 2002, she went to Tammy’s house where Appellant was staying. At her sister Tammy’s request, Wanda entered the house to pick up Tammy’s keys. She went into the house without knocking and had a verbal exchange with Appellant. Wanda testified that she was intoxicated at the time and couldn’t really remember what was said, but a statement she signed the night of the incident reported that Appellant said, “Y’all don’t go anywhere. I’ve got something for y’all.” Wanda testified that she took Burton’s statement to be a threat. She then left the house, walked to Janet’s car, and they drove away. At one point in her testimony, Wanda stated that she heard a gunshot as they were driving away. On cross-examination, however, Wanda stated that she never saw Burton with a rifle in his hand, that it was dark, and that it was not uncommon to hear gunshots in the neighborhood. She admitted signing a statement that said, “Albert reached inside and pulled out a rifle from the house.. . . Albert pointed the gun at [us] and shot at us. The bullet hit my car,” but she denied that the statement was hers, saying instead that she witnessed her sister Janet’s signature on the statement.
Janet Jones testified that she drove Wanda to the house where Appellant was staying and that Wanda went inside the house and was arguing with Appellant when she came out. Janet testified that she could not hear the exchange between Appellant and Wanda, but that she told Wanda to “come on,”'at which point Wanda returned to the car and they drove away. Janet said that she later noticed a hole in her car and signed the statement witnessed by her sister Wanda. On cross-examination, Janet testified that she did not read the statement before signing it, that she never saw Appellant with a rifle, and that she did not hear the bullet hit the car as she drove off. She also testified that the area had a “reputation of gunshots going off.”
Bob Paxton, the local chief of police, testified that he investigated a report lodged on July 24, 2002, about gunshots striking a vehicle occupied by Janet and Wanda Jones. He stated that upon arriving at the residence, he was informed that Appellant was inside. At first, the police attempted to get Appellant to come to the door by using a PA system, but without success. Then, police officers telephoned Appellant and spoke with him for at least one hour and a half to get him to come out of the residence so they could further investigate the situation. Eventually, Appellant did come out and was taken into custody. Paxton testified that at that point, he went inside the residence and found a 30-30 rifle inside the closet door that smelled as though it had just been fired. On cross-examination, Paxton stated he did not find any spent shell casings during the search of the residence.
Tammy Jones testified on behalf of Appellant, stating that the gun found at the residence was her gun and that a friend had shown her how to shoot the gun earlier that day. She further testified that she did not see Appellant with a gun.
While the evidence summarized above might be sufficient to withstand a substantial-evidence challenge, we cannot say that the proof of Appellant’s guilt in the form of circumstantial evidence was overwhelming. First, despite Janet’s written statement that “The bullet hit my car,” neither Wanda nor Janet testified at trial to actually hearing the alleged shot hit the car. Wanda testified that she heard gunshots, and Janet testified that she later found a hole in her car. In fact, both women specifically testified that they were not aware that a bullet had hit the car. Additionally, Wanda’s testimony was replete with inconsistencies. First she testified that she felt threatened by Mr. Burton’s comment, “Y’all don’t go anywhere. I’ve got something for y’all,” but later she testified that she did not feel threatened because “I don’t think he can whoop me.” She also testified repeatedly that she was drunk at the time of the incident and so could not be sure of any of the details. Most notably, Wanda’s testimony was even inconsistent regarding whether or not she actually heard a gunshot. Finally, both women testified that it was not uncommon to hear gunshots in the area. In sum, we cannot conclude that there was overwhelming evidence of Appellant’s guilt or that the jury’s verdict would have been the same absent knowledge of his previous conviction. Thus, we hold that Appellant’s trial counsel was deficient in failing to request severance of the felon-in-possession charge from the other criminal charges, and that Appellant suffered prejudice as a result of this failure. The circuit court’s decision on this point is reversed.
II. Sentencing
Appellant’s second major point focuses on the propriety of his sentence. Though we reverse and remand for further proceedings because of trial counsel’s failure to make a severance motion, we feel constrained to address the sentencing issue raised by Appellant because the same issue is likely to arise again on retrial. Appellant first argues his trial counsel was ineffective in allowing him to be sentenced outside the presumptive sentence range, and then suggests that Ark. Code Ann. § 16-90-804 (Repl. 2006) is unconstitutional because it allows a lighter presumptive sentence when the defendant is sentenced by a judge.
Appellant’s first argument on sentencing can be summarily dismissed by referencing Ark. Code Ann. § 16-90-803 (b)(4), which states, “This section shall not apply when a jury has recommended a sentence to the trial judge.” In this case, Appellant’s sentence was recommended to the judge by a jury, and thus the presumptive sentence does not apply. Moreover, the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” is not violated in this instance because Appellant’s sentence was submitted by a jury. Additionally, Appellant does not allege that he was sentenced outside the statutory maximum, and the statutory minimum or maximum ranges for a sentence always override the presumptive sentences. Ark. Code Ann. § 16-90-804(3) (C).
Finally, Appellant’s equal protection argument has already been addressed by our court in Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995). In Pickett, the defendant challenged the presumptive sentences as violating the right to a jury trial because, arguably, those defendants who choose to plead guilty and be sentenced by the court would receive a lesser sentence under the presumptive sentencing guidelines than they would receive from a jury under the statutory guidelines. The court stated:
The argument embraces a basic misunderstanding of the applicable statutes. The sentencing guidelines do not burden the fundamental right to a jury trial because the statutory minimum and maximum ranges for a sentence always override the presumptive sentences. Section 16-90-804(3) (C) provides: “The statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges.” Therefore, the statutes do not allow a judge to sentence a defendant to a fifty-four month sentence when the statutory minimum is ten years, as in this case.
Id. at 226, 902 S.W.2d at 209. Similarly here, Appellant’s equal protection argument has no merit because, in no instance, whether the sentence is imposed by judge or jury, can a defendant be sentenced outside the statutory range. Thus, in the absence of an equal protection violation, trial counsel’s performance was not deficient in connection with the sentence imposed.
Reversed and remanded.
Dicicey and Gunter, JJ., dissent. | [
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Per Curiam.
Leland D. Lawson filed a motion for belated appeal in the Arkansas Court of Appeals. The court of appeals certified the motion to this court because, pursuant to Ark. R. App. P.-Crim. 2(e), this court may act upon and decide a case in which the notice of appeal was not timely. Lawson filed this motion for belated appeal seeking relief after the court of appeals dismissed his prior appeal for failure to timely file a notice of appeal.
This case arises from a conditional plea of guilty under Ark. R. Crim. P. 24.3. On July 5, 2005, a hearing was held in the circuit court on Leland’s motion to suppress. The motion was denied that day, and Lawson’s attorney, Blake Chancellor, subsequently filed a notice of appeal from the ruling against Lawson’s motion to suppress entered on July 5, 2005.
A conditional plea under Rule 24.3 provides the right to appeal from the “judgment,” and this court has made clear that the appeal must be taken from the judgment and not the order denying the motion to suppress. See Williams v. State, 366 Ark. 583, 237 S.W.3d 93 (2006) (per curiam). Consistent with this law, the court of appeals granted the motion to dismiss.
Lawson now moves to be allowed a belated appeal based upon the court of appeals’ ruling that, pursuant to Williams, he may not be precluded from filing a motion for belated appeal. Relief from failure to perfect an appeal is provided as part of the appellate procedure granting the right to an appeal. Id.; McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Further, under Rule 2(e), an attorney or a criminal defendant may seek relief when he or she is not at fault for the failure to perfect the appeal and where good reason can be shown. Id. Good reason is established where a criminal defendant is not at fault, and his or her attorney has failed to file a timely notice of appeal. Id. In this case, as in Williams, a notice of appeal was filed by attorney Chancellor; however, he failed to appeal from the judgment as required under Rule 24.3. Lawson was not at fault for his attorney’s failure to file a timely notice of appeal and he shows good reason for this motion to be granted. Lawson may file his appeal, and a copy of this opinion shall be forwarded to the Committee on Professional Conduct.
This court does not agree with the State’s contention that we should limit the availability of appellate Rule 2 to the review of an appealed conviction rather than the review of a denial of a motion to suppress pursuant to Rule 24.3(b). | [
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Per Curiam.
Stevie Christine Wilson Boyd petitions this court for a writ of prohibition in response to the circuit court’s order to show cause for her refusal to abide by the circuit court’s previous visitation order. In her amended writ of prohibition, Boyd argues that the order granting visitation was by default and did not comply with Ark. R. Civ. P. 55(b). Further, Boyd argues that the circuit court exceeded its authority in entering its show-cause order. We deny Boyd’s petition without prejudice, and we order rebriefing.
Boyd gave birth to a girl on May 22, 2001. Alfred William Taylor was listed as the child’s father on the birth certificate. Boyd and Taylor were not married. On August 27, 2002, Mr. Taylor filed a complaint to determine paternity with the Sharp County Circuit Court, but Boyd claims that she was never served with the paternity complaint.
On August 27, 2002, Mildred Taylor, the paternal grandmother of the child, filed a petition for grandparent’s visitation through the original paternity action. On March 12, 2004, the circuit court entered an order granting Ms. Taylor’s visitation with Boyd’s minor child. Ms. Taylor then filed a motion to show cause on May 6, 2004, seeking a finding of contempt against Boyd for violating the visitation order. An order to show cause was entered on May 18, 2004. Boyd was found to be in contempt, and an order to that effect was entered on July 7, 2004.
On August 3, 2004, Boyd filed a motion to set aside default judgment, arguing that Ms. Taylor was not a party to the proceeding. On April 12, 2005, Ms. Taylor filed a motion to intervene. The circuit court heard Boyd’s motion on April 18, 2005, and found that the July 7, 2004, order was to remain in effect. On May 9, 2006, Alfred Taylor filed a motion for order to show cause and a petition to establish paternity. The circuit court ordered Boyd to appear and to show cause on May 22, 2006. On May 18, 2006, Boyd petitioned our court for the issuance of a writ of prohibition to the Sharp County Circuit Court. Boyd filed an amended petition and brief on June 26, 2006. The State did not respond. We now consider Boyd’s petition.
A party seeking prohibition must produce a record sufficient for the court’s review, and in prohibition cases in which briefs are filed, such as this, an abstract is required. McFarland v. Lindsey, 338 Ark. 588, 2 S.W.3d 48 (1999). A petitioner seeking a writ of prohibition must produce a record sufficient to show that the writ is clearly warranted. Id. As in all such cases, the record is confined to that which is abstracted. Id. The abstract must contain “material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(5) (2006). Moreover, the addendum shall include the order, “along with other relevant pleadings, documents, or exhibits essential to an understanding of the case . . . [.]” Ark. Sup. Ct. R. 4-2(a)(8).
Here, Boyd failed to include an informational statement, jurisdictional statement, or an abstract, as required by Ark. Sup. Ct. R. 4-2(a); see also McFarland, supra. Boyd’s addendum, which was included with the original petition filed on May 18, 2006, contains the show-cause order from which Boyd brings her petition. However, while Boyd’s original petition, filed on May 18, 2006, contains an addendum, that addendum does not include the order entered on May 10, 2005, or any other previous orders that Boyd appears to have violated. Additionally, the addendum does not contain other relevant pleadings, which include, but are not limited to, the petition for grandparent’s visitation, complaint to determine paternity, motion to intervene, and motion to set aside default judgment. We conclude that these documents are necessary to the understanding of this case. Ark. Sup. Ct. R. 4-2(a)(8). Therefore, we direct Boyd to file a complying abstract, brief, and addendum within seven days from the entry of this order. See Arkansas Dep’t of Human Servs. v. Collier, 351 Ark. 380, 92 S.W.3d 683 (2002).
We further note our concern that the Attorney General’s Office has not responded on behalf of Judge Phil Smith of the Sharp County Circuit Court. Because a response would assist this court in deciding the merits of Boyd’s petition, we direct the Attorney General to file a response on behalf of Judge Smith within fourteen days of the filing of Boyd’s revised abstract, brief, and addendum.
Petition denied without prejudice; rebriefing ordered. | [
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Jim Gunter, Justice.
This appeal arises from an order granting a motion for new trial filed by appellee, Kyle B. Johnson, after a Greene County jury entered judgment in his favor in a case for underinsured motorist benefits arising from a motor-vehicle accident involving Johnson and Suzanne King, who was insured by appellant, The Cincinnati Insurance Company (Cincinnati). Cincinnati now appeals the order granting Johnson’s motion for new trial. We reverse the circuit court’s order and dismiss the appeal.
On November 7 and 8, 2005, a twelve-person jury returned a verdict in favor of Johnson, and on November 23, the circuit court entered an order consistent with the jury’s verdict. On December 5, 2005, Johnson filed a motion forjudgment notwithstanding the verdict and a motion for new trial. In his motions, Johnson argued that the jury properly found that he suffered injuries that were caused by the collision, for which he was awarded $6,268.80 for past and future medical expenses, respectively. Johnson asserted that the jury failed to assess damages for each element of damages, including pain and suffering in the past and future, as well as mental anguish. Johnson requested that the circuit court set aside the jury verdict in the amount of $12,537.60, and enter ajudgment notwithstanding the verdict (JNOV) in a reasonable amount for each of the elements of damages. Alternatively, Johnson requested a new trial under Ark. R. Civ. P. 50(b)(3).
On January 5, 2006, the circuit court held a hearing by telephone conference on Johnson’s motions for JNOV and for new trial. After hearing arguments and reviewing the pleadings, the circuit court granted Johnson’s motion for new trial pursuant to Ark. R. Civ. P. 59. In its order, the circuit court stated that it instructed the jury to award Johnson each of the other elements of damages in accordance with AMI Jury Instruction 2201. The court found that (1) the jury found from a preponderance of the evidence that the admitted negligence of Suzanne King [Cincinnati’s insured] was a proximate cause of any damages suffered by Johnson; and (2) the itemized jury verdict showed a jury verdict for Johnson in the amount of $6,268.80 for past medical bills, $6,268.80 for future medical bills, $0 for past pain and suffering, $0 for nature and extent of injury, $0 for future pain and suffering, $0 for past mental anguish, $0 for future mental anguish, and $0 for loss of ability to earn in the future. The circuit court ruled that “[t]here was no rational basis for the jury to return a verdict in favor of the plaintiff on the issue of admitted negligence of the tortfeasor being ‘a proximate cause’ of damages suffered by the plaintiff, and to award the plaintiff all of his past medical bills and a like sum for future medical bills, but to not award anything for pain and suffering based upon injuries that the defense admitted included a broken finger, cervical strain, and other injuries.” The court set aside the judgment and granted Johnson’s motion for new trial. From this order, Cincinnati brings its appeal.
For its first point on appeal, Cincinnati argues that the circuit court did not have jurisdiction to issue its January 5, 2006, order granting Johnson’s motion for new trial. Specifically, Cincinnati contends that the circuit court did not grant a new trial within thirty days, as required by Ark. R. Civ. P. 59(b), and Johnson’s motion was deemed denied on the thirtieth day. Cincinnati asserts that the circuit court was without jurisdiction to enter its order after the thirty-day period under Rule 59(b).
Johnson responds, arguing three points to affirm the circuit court’s order. First, Johnson contends that the circuit court should be affirmed in granting a new trial because Cincinnati lacked standing to challenge the circuit court’s order thirty-one days after the filing of Johnson’s motion for new trial. Second, Johnson maintains that the circuit court’s order should be affirmed because his constitutional right to due process was violated. Third, appellant argues that the circuit court retained jurisdiction to conduct a hearing and to rule on his motion for new trial under Amendment 80 of the Arkansas Constitution.
Rule 59(b) establishes when a new trial motion shall be filed, and provides as follows:
(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment .... If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
Id.; see also Ark. R. App. P. 4(b)(1).
We have held that a trial court loses jurisdiction to act on a Rule 59 motion thirty days after the motion is filed. Reis v. Yates, 313 Ark. 300, 854 S.W.2d 335 (1993). We similarly held in Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992), where Isely brought a personal-injury action on behalf of his daughter against Wal-Mart, and the jury returned a verdict in Wal-Mart’s favor. The circuit court entered the order on April 2, 1991, and Isely filed a motion for new trial on April 9, 1991. A hearing was not held until June 7, 1991, and the order granting the new trial was not entered until June 19, 1991. We reversed and dismissed, holding that the circuit court lost jurisdiction of the motion by failing to rule on it within thirty days after filing. Id.; see also McCoy v. Moore, 338 Ark. 740, 1 S.W.3d 11 (1999) (holding that a motion to vacate was treated as a motion for new trial, which was deemed denied after thirty days).
With this precedent in mind, we turn to the present case. Here, the jury awarded Johnson damages for past and future medical expenses, and the circuit court entered an order consistent with the jury’s findings on November 21, 2005. On December 5, 2005, Johnson filed his motion for new trial. The filing of his motion for new trial was within the ten-day requirement of Rule 59(b). See also Ark. R. Civ. P. 6(a). On January 5, 2006, the circuit court entered its order granting a new trial thirty-one days after Johnson filed his motion for new trial. Thus, the circuit court’s order is without effect because it failed to act on Johnson’s motion within the thirty-day period following its filing. The motion was deemed denied on Wednesday, January 4, 2006, and the circuit court did not have jurisdiction to act beyond that date. See McCoy, supra. Therefore, we conclude that the circuit court lost jurisdiction to rule on that motion. See Wal-Mart Stores, supra.
We now address Johnson’s other arguments made to this court. Johnson concedes in his brief that the order granting a new trial was filed on the thirty-first day. However, Johnson argues that the circuit court properly granted his motion for new trial because Cincinnati lacked standing to challenge the motion because it did not exhaust its remedies in the circuit court below. Specifically, Johnson contends that Cincinnati waived its jurisdictional objection by failing to bring the deemed-denied rule to the court’s attention during the telephone hearing on January 5, 2006.
Johnnson’s argument is misplaced for the following reasons. First, we have said that the question of whether the trial court acted in excess of its authority becomes a matter of subject-matter jurisdiction and may be raised sua sponte. O’Connor v. State, 367 Ark. 173, 238 S.W.3d 104 (2006). Second, Johnson couches his argument in terms of Cincinnati’s standing, but rather, he makes a preservation argument with regard to Cincinnati’s waivingjurisdiction by participating in the January 5 hearing. We have said, in our unvarying application of the rule, that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 576, 535 S.W.2d 810, 814 (1976). Thus, the issue of jurisdiction is properly before us.
Further, Johnson argues that the circuit court correctly granted his motion for new trial because to do otherwise will violate his constitutional due-process right to a hearing. Specifi- ■ cally, Johnson asserts that the “deemed-denied” provision of Rule 59(b) precludes “his opportunity to have a requested hearing.” Johnson also makes a separation-of-powers argument, citing the language of Amendment 80.
We have said that the failure to obtain a ruling on an issue at the circuit court level, including a constitutional issue, precludes review on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Flere, we do not find any evidence in the record that Johnson raised his due-process and separation-of-powers arguments to the circuit court or that the circuit court ruled on these arguments. Absent in the record is a transcript of the telephone conference on January 5, 2006, where Johnson could have raised these issues. Johnson attributes his lack of a hearing to a scheduling delay by Cincinnati’s counsel. However, Johnson provides no adequate explanation as to why the hearing could not have taken place at any time during the thirty-day period, nor does he point us to any ruling on the constitutional issues. Unless a hearing is requested by counsel or ordered by the court, a hearing will be deemed waived and the court may act upon the matter without further notice after the time for reply has expired. Ark. R. Civ. P. 78(c). For these reasons, we are precluded from reaching the merits of Johnson’s due-process and separation-of-powers arguments.
Based upon the foregoing conclusions, we hold that the circuit court was without jurisdiction to hold the hearing and to enter the order on January 5, 2006, on Johnson’s motion for new trial. Accordingly, we lack jurisdiction to consider the issues, and we dismiss the appeal. See Murchison v. Safeco Ins. Co. of Illinois, 367 Ark. 166, 238 S.W.3d 11 (2006).
Reversed and dismissed.
Brown, J., not participating. | [
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Donald L. Corbin, Justice.
Appellant Ledell Lee has filed a motion requesting this court to recall its mandate affirming the denial of his request for postconvcition relief. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). In support of his motion, Lee asserts that he was denied the assistance of qualified counsel during his postconviction proceedings, due to the fact that his appointed counsel was impaired by a substance-abuse problem. The State counters that there is no constitutional right to postconviction counsel; therefore, Lee has not been deprived of any established right that would warrant the recall of our mandate. Additionally, the State argues that the need for finality in criminal appeals outweighs any argument that Lee was deprived of competent counsel. Because it is clear from the record before us that Lee was deprived of the assistance of qualified and competent counsel to which he was entitled under Ark. R. Crim. P. 37.5, we recall the mandate and remand this matter to the circuit court for a new postconviction proceeding.
Briefly reviewing the facts, Lee was convicted of the 1993 capital murder of Jacksonville resident Debra Reese and sentenced to death. His conviction and sentence were affirmed by this court in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002 (1997). Thereafter, Lee filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, arguing that his trial attorneys had rendered ineffective assistance of counsel. Pursuant to Rule 37.5, the circuit court appointed counsel to represent Lee in connection with his postconviction petition. Following a hearing on his petition, the trial court entered an order denying Lee’s request for relief.
Following our affirmance of the denial of postconviction relief, Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. Upon reviewing his petition, the District Court determined that it was necessary to hold the petition in abeyance to allow Lee the opportunity to seek additional recourse in state court. The District Court’s decision was based on concerns it raised sua sponte regarding possible impairment of Lee’s counsel during the Rule 37 proceedings.
The State appealed the District Court’s decision to the Eighth Circuit Court of Appeals. See Lee v. Norris, 354 F.3d 846 (8th Cir. 2004). During the pendency of the State’s appeal, Lee’s Rule 37 counsel filed, under seal, a motion for substitution of counsel. Therein, counsel stated that at a minimum there was an appearance of an actual conflict of interest that prevented him from continuing to represent Lee. The motion was granted and new counsel was appointed to represent Lee. At the outset, the Eighth Circuit noted that the only issue before it was “the propriety of the District Court’s choice to stay the petition, rather than dismiss it.” Ultimately, the court concluded that it was proper for the District Court to hold the petition in abeyance, stating:
The District Court noted that Mr. Lee’s “counsel may have been impaired to the point of unavailability on one or more days of the Rule 37 hearing.” The District Court was also troubled by counsel’s repeated requests for appointment of co-counsel and the trial court’s refusal to address counsel’s argument that he was not qualified to handle the case because of other obligations.
Id. at 848. The Eighth Circuit also noted, however, that the District Court’s order was a little too specific with regards to Lee seeking relief in state court, explaining:
We do not presume to say which court in the state system would be the appropriate forum, still less to hold that, if there is such a court, an evidentiary hearing should be held. We leave to petitioner’s present appointed counsel, in the first instance, to determine what form of action would be appropriate, and what relief should be requested. It will be for the state courts, of course, to decide the appropriate mode of proceedings, as well as what relief to grant, if any.
Id. at 850 (citation omitted) (footnote omitted).
Following entry of the Eighth Circuit’s order, Lee filed the instant motion with this court requesting that we recall the mandate and reopen his postconviction proceedings. In support of his motion, Lee pointed to the fact that his Rule 37 counsel was impaired by alcohol use during the time that he represented Lee in his postconviction proceedings, a fact admitted to by counsel. This court determined that Lee’s motion should be submitted as a case, and the clerk of this court subsequently established a briefing schedule and the motion to recall the mandate is now presented to this court.
The issue now before us is whether the fact of Lee’s counsel’s intoxication and subsequent impairment warrants the relief requested by Lee, namely a recall of our mandate and a reopening of his postconviction proceedings. In support of his argument that such relief is warranted, Lee argues that Rule 37.5 requires the appointment of qualified counsel and, in this case, it cannot be said that Lee’s appointed counsel was qualified under this rule due to his impairment from intoxication. Additionally, Lee avers that there was at least one viable claim of ineffective assistance of counsel not pursued by his Rule 37 counsel, presumably due to counsel’s impairment.
The State counters that the relief requested by Lee is not warranted because the present case does not meet the criteria for recalling a mandate set forth by this court in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). Additionally, the State argues that even though Lee’s counsel may have had a substance-abuse problem at the time of the Rule 37 proceedings, Lee cannot establish that he was prejudiced by his counsel’s impairment. Specifically, the State argues that a review of the Rule 37 proceedings reveals that counsel adequately represented Lee’s interest and that this court would be ill advised to disturb the finality of its previous order.
Before addressing the merits of Appellant’s motion, we look first to the limited instance in which this court has recalled a mandate in a death-penalty case. In Robbins, we recognized that “this court will recall a mandate and reopen a case in extraordinary circumstances.” Id. at 564, 114 S.W.3d at 222. However, in deciding to recall the mandate, we specifically explained that our decision was based on three factors: 1) the presence of a defect in the appellate process; 2) a dismissal of proceedings in federal court because of unexhausted state court claims; and 3) the appeal was a death case that required heightened scrutiny. Thus, these three criteria must be satisfied in order for this court to consider the relief requested by Lee.
First, we must determine whether there is a presence of a defect in the appellate process that warrants a recall of the mandate. Certainly, the intoxication and subsequent impairment of Lee’s appointed counsel during the Rule 37 proceedings constitute a defect because of the exacting requirements of Rule 37.5 regarding the appointment of qualified counsel in postconviction proceedings for a person under a sentence of death.
The second factor enunciated in Robbins is the dismissal of federal court proceedings because of the existence of unexhausted state claims. Here, the District Court held Lee’s habeas petition in abeyance so that this court could determine if there were any unexhausted state claims. The decision to hold the petition in abeyance, however, was based on a procedural issue that would have resulted in Lee being barred from returning to federal court to refile his petition because of the one-year statute of limitations imposed on habeas petitioners. See 28 U.S.C. § 2244. In addition, for reasons explained below, it is clear that Lee was deprived of his right to a postconviction proceeding in state court due to the impairment of his appointed counsel. We reiterate that because Lee is under a sentence of death, Rule 37.5 mandates that he be appointed qualified counsel. Counsel who is impaired by alcohol abuse cannot be said to be qualified counsel. Accordingly, until Appellant has been afforded a new Rule 37 proceeding, he has potential state claims that remain unexhausted.
Finally, the third factor regarding heightened scrutiny in death cases is applicable in the instant case. A review of the record in the instant case reveals that Rule 37 counsel admitted that he was impaired by a substance-abuse problem during his representation of Lee in the postconviction process. In an affidavit filed before the Eighth Circuit, Rule 37 counsel admitted that he struggled with substance abuse and received in-patient treatment on two different occasions before becoming clean and sober in late 1999. He further averred that during the pendency of Lee’s postconviction proceeding he approached the trial court and asked either to be relieved or to have co-counsel appointed because of his condition, but that his requests were denied. As we noted in Robbins, the death penalty demands unique attention to procedural safeguards. Id. at 561, 114 S.W.3d at 220. Such procedural safeguards warrant a recall of the mandate in this case because Lee was denied the representation of qualified and competent counsel during the pendency of his Rule 37 proceeding.
We are simply unpersuaded by the State’s argument that Lee is not entitled to counsel, as postconviction proceedings are civil in nature and there is consequently no right to the appointment of counsel. This argument completely ignores our prior case law holding that while there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004); Larimore v. State, 321 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 699, 751 S.W.2d 335, 339 (1988)). More importantly, the State’s argument in this regard completely ignores the exacting requirements of Rule 37.5 regarding the appointment of counsel.
A brief historical overview on this court’s treatment of death-penalty cases and the application of Rule 37.5 will prove helpful in the instant case. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Pub. L. No. 104-132 (1996). By this act, Congress chose to restrict federal habeas corpus review in exchange for the states’ appointing competent counsel for indigent capital defendants for purposes of state postconviction review. See Burke W. Kappler, Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the States, and the Right to Counsel, 90 J. Crim. L. & Criminology 467, 469 (2000).
In 1997, the Arkansas General Assembly enacted Act 925 of 1997 in response to the AEDPA. Act 925 is now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 2005). The General Assembly stated that the purpose behind Act 925 was to comply with the AEDPA “in an effort to obtain the benefits of that act concerning time limitations in which federal habeas corpus proceedings and appeals must be considered and decided[.]” Ark. Code Ann. § 16-91-204 (Supp. 2005)..
Also in 1997, this court adopted Arkansas Rule of Criminal Procedure 37.5 in order to “opt in” to the benefits of the AEDPA by setting criteria for appointed counsel for indigent capital defendants sentenced to death. We subsequently explained the purpose behind Rule 37.5 in our case law:
Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W.2d at 185.
Echols v. State, 344 Ark. 513, 517, 42 S.W.3d 467, 469 (2001) (quoting Wooten v. State, 338 Ark. 691, 695-96, 1 S.W.3d 8, 10-11 (1999)).
Stated differently, the purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a defendant’s claims and, therefore, eliminate the need for multiple postconviction actions in federal court. See Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003); Echols, 344 Ark. 513, 42 S.W.3d 467.
It is clear that not only has this court undertaken to allow postconviction proceedings, but more importantly, has established specific criteria for the appointment of qualified and competent counsel to represent indigent defendants under a sentence of death. If this court were to accept the State’s argument and find that an attorney impaired by a substance-abuse problem constitutes qualified counsel, we would be ignoring the dictates of Rule 37.5, as well as the history leading up to the implementation of that rule.
In light of the specific qualifications set forth for the appointment of Rule 37.5 counsel, this court cannot ignore the fact that Lee’s counsel admitted to being impaired during Lee’s Rule 37 proceeding, an admission that is supported by the record itself. There are notable examples during the Rule 37 hearing where it appears that counsel was not functioning at the level of qualified or competent counsel required by Rule 37.5. Notable examples of counsel’s troubling behavior include:
• belligerent attitude towards the prosecuting attorney;
• being unable to locate the witness room;
• repeatedly being unable to understand questions posed by the trial court or objections raised by the prosecution;
• not being familiar with his own witnesses;
• not properly serving witnesses or telling them not to attend the hearings, only to call them during the hearing;
• routinely forgetting basic rules of procedure regarding the admission of evidence;
• failing to prepare for the hearing by organizing evidentiary items or meeting with witnesses;
• rambling incoherendy, repeatedly integecting “blah, blah, blah” into his statements.
In fact, counsel’s behavior became so erratic that during the Rule 37 hearing, counsel for the State went on record as follows:
Your Honor, I don’t do this lightly, but with regard to [Rule 37 counsel’s] performance in Court today, I’m going to ask that the Court require him to submit to a drug test. I don’t think that he’s, he’s not, he’s just not with us. He’s re-introduced the same items of evidence over and over again. He’s asking incoherent questions. His speech is slurred. He stumbled into the Court Room. As a friend of the Court, and I think it’s our obligation to this Court and to this Defendant that he have competent counsel here today, and I don’t —That’s just my request of the Court, Your Honor.
In response, the trial court stated that it knew of no authority to take such action and continued with the Rule 37 hearing.
Additionally, we do not agree with the State’s proposition that Appellant’s failure to cooperate with his trial counsel somehow negates the fact that his Rule 37 counsel failed to investigate an identifiable claim of ineffective assistance of counsel at the penalty phase, specifically trial counsel’s failure to put on any mitigating evidence. According to Appellant, Rule 37 counsel’s failure to investigate such a claim is a prime example of his lack of competence during the Rule 37 proceeding. Appellant’s demeanor or attitude at trial is of no import to his Rule 37 counsel’s performance.
Likewise, we do not agree with the State’s contention that Appellant’s motion should be denied on the basis that Appellant has been dilatory in bringing his motion to recall the mandate. The issue regarding counsel’s competency first arose in the District Court’s opinion holding Lee’s petition for habeas relief in abeyance. Then, once the State appealed that decision to the Eighth Circuit, Rule 37 counsel filed his motion for substitution of counsel. Lee’s current counsel was not appointed until July 28, 2004. New counsel, in turn, filed the motion to recall the mandate on August 30, 2005. The State makes much to do about the fact that it took over a year to file this motion. As Lee points out, however, his new counsel had the duty to familiarize herself with the voluminous record in this case and also had to investigate what avenue of relief to pursue on behalf of her client. Accordingly, we do not agree .with the State that Appellant somehow purposely delayed the instant process and thus is not entitled to relief.
In sum, we agree with the Eighth Circuit that Rule 37 counsel did not, under these particular and unusual circumstances, meet the qualifications of competency required of counsel appointed under Rule 37.5. Accordingly, we recall our mandate and remand this matter to the circuit court for proceedings consistent with this opinion.
Motion granted.
Lee has also filed a motion requesting funds so that he may adequately investigate his claim of ineffective assistance of trial counsel. We deny the motion, as any such request should be addressed to the circuit court. | [
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Tom Glaze, Justice.
This is an appeal from a class-certification order entered on December 29, 2005. The class-action complaint, filed on February 3, 2005, alleged that appellant Baptist Health (“Baptist”) violated the terms of contracts to purchase medical services. The complaint, which was filed by appellees Linda Haynes and Kimberly Seigrist, individually and as class representatives, alleged that Baptist charged “self-pay”patients — i.e., those without private medical insurance or those enrolled in a government medical plan — significantly more than it charged private insurers or government health plans. According to the complaint, by charging the self-pay patients a rate in excess of the “reasonable value” of the services provided by Baptist, Baptist breached its contracts with the plaintiffs. The complaint sought certification of a class of individuals described as follows:
[T]hose persons who, from February 2, 1999, through the date of judgment, contracted with [Baptist] to purchase medical services and/or medical goods, which services and/or goods were not (a) paid by a governmental medical plan or program; or (b) paid by a private entity in the business of providing insurance coverage pursuant to a prenegotiated private health insurance contract with ¡Baptist].
Haynes and Seigrist sought both monetary damages and a declaratory judgment to the effect that Baptist was entitled only to the reasonable value of the medical care rendered for any medical care received by the plaintiffs and class members.
Baptist moved to dismiss the complaint, but after a hearing on September 13, 2005, the trial court denied Baptist’s motion. Baptist also filed a motion pursuant to Ark. R. Civ. P. 23 and 52, asking the trial court to make specific findings of fact and conclusions of law with respect to the plaintiffs’ request for class certification. On October 18, 2005, the circuit court held a hearing on the plaintiffs’ motion for class certification. Following that hearing, both plaintiffs and Baptist filed proposed findings of fact and conclusions of law.
On December 29, 2005, the trial court entered its order certifying the case as a class action. The order defined the class as follows:
All persons, from February 3, 2000, who signed admissions forms with Baptist Health and who are obligated for payment of a patient’s account for medical goods and/or services, where the amount assessed by Baptist Health to satisfy their account has been set at the full catalogue rate and who have paid, or had paid on their behalf or the patient’s behalf, a sum of 50% or more of the charge catalogue rate.
The class shall not include persons whose services and/or goods were paid pursuant to a governmental medical plan or program, or a pre-negotiated insurance contract, or other contract, wherein Baptist Health has agreed to accept an amount less than its charge catalogue rate to satisfy the patient’s obligation. A person will not qualify to be included in the class where the account has been the subject of litigation, judgment has been entered, and the time for appeal has expired.
After making various findings of fact, the trial court stated its conclusions of law briefly, finding that the requirements of Ark. R. Civ. P. 23 had been satisfied.
Both the plaintiffs and Baptist subsequently filed motions for additional findings of fact and conclusions of law. However, the trial court denied both motions in separate orders filed on January 27, 2006. That same day, Baptist filed its notice of appeal. Baptist now raises two arguments for reversal, contending that the trial court 1) abused its discretion in determining that the plaintiffs satisfied Rule 23’s requirements of commonality, predominance, and superiority; and 2) erred in rendering findings of fact and conclusions of law that do not adequately allow for meaningful appellate review.
We address Baptist’s second argument first. The standard of review for either the grant or denial of a certification of a class action is whether the trial court abused its discretion. Farm Bureau Mut. Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996); Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). Rule 23 of the Arkansas Rules of Civil Procedure details the requirements for a class-action suit. It states:
(a) 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 ail 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) 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. 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.
See also BPS Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). We have reviewed the provisions of Rule 23 on numerous occasions and have held that, in order for a class-action suit to be certified, six factors must be met. Specifically, the party seeking certification must establish: (1) numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) superiority. Id.; see also Mega Life & Health Ins. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).
When we review a class-action certification, we will review the trial court’s analysis of the factors upon which certification must be based. BPS, supra. Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirements of Rule 23 are satisfied. Id. In the instant case, Baptist argues that such a review is impossible because the trial court’s order is insufficient. We agree.
As mentioned above, Baptist only challenges the court’s conclusions regarding the Rule 23 elements of commonality, predominance, and superiority. The court’s conclusions of law with respect to these three elements were as follows:
14. The requirement of commonality concerning issues of fact and law is satisfied.
18. The requirement of predominance is satisfied.
19. The requirement of superiority is satisfied.
Baptist, which filed a Rule 52 motion seeking specific findings of fact and conclusions of law prior to the trial court’s entry of the class-certification order, urges that the trial court’s order fails to make the “brief, definite, pertinent findings and conclusions upon the contested matters” that are required by this court’s case law. See BPS, supra. This court first discussed the interplay between Rule 23 and Rule 52 in Mega Life, supra. There, the appellant, Mega Life & Health Insurance Co., argued that this court should reverse the trial court’s certification order because the lower court failed to make specific findings regarding the existence of the Rule 23 requirements. In rejecting this argument, our court wrote as follows:
This issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).
Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal. [Citations omitted.]
Mega Life, 330 Ark. at 267-68 (emphasis added).
Similarly, in BPS, supra, appellant BPS argued that the case should be reversed and remanded because the trial court failed to make specific findings of fact and conclusions of law pursuant to Rule 52. The court noted that Rule 52 “has been interpreted to mean that ‘if findings under Rule 52(a) are timely requested, the trial court is required to make specific findings of fact and conclusions of law and to file the same with the clerk of the trial court so that such findings may be made part of the record.’ ” BPS, 341 Ark. at 848-49 (emphasis added) (quoting McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000)). The distinction between BPS and Mega Life was that, in BPS, the appellant/defendant had made a request for specific findings under Rule 52. This court noted that BPS filed two separate motions requesting specific findings and conclusions, one four months before the trial court entered its order certifying the case as a class action, and the second approximately three months prior to the entry of the order. BPS, 341 Ark. at 849. The order that was entered provided simply that the court found that “the prerequisites of Rule 23(b) have been met,” and that, “in accordance with Rule 23(b) . . . the questions of law or fact common to the members of the class predominate over those questions affecting only individual class members.” Id. at 850.
On appeal, the BPS court concluded that the trial court had abused its discretion in entering such an order, writing as follows:
We conclude that this order does not meet the mandatory requirements of Rule 23. Specifically, evaluating the trial court’s order we cannot be certain of: (1) the number of members in the class which the trial court used to determine whether the numerosity requirement was met (estimated size of the class ranged from 100 members to 20,000 members); (2) what the trial court found to be the “common questions of law or fact”; (3) what claims the trial court found to be held by the representative parties which would be “typical” of the claims of the proposed class and whether such claims would be subject to defenses not applicable to all members of the class; (4) why the named plaintiffs’ claims predominate over claims held by individual class members; (5) why the trial court found that the representative parties would fairly and adequately represent the class; or (6) why the trial court found that a class action is “superior to other available methods for a fair and efficient adjudication of all the actual and potential claims.”
Here, the trial court’s order does not provide the parties or this court with an analysis of the requirements of Rule 23 or specific factual findings of fact or conclusions of law pursuant to Rule 52. Because it failed to comply with these requirements we conclude that the trial court has abused its discretion in certifying this case for class-action status. For a class action to serve the purpose of an efficient and fair means of resolving claims arising out of the same circumstances, these issues must be analyzed.
Id. at 850-51 (emphasis added).
A similar issue was again raised in Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003) (Lenders I). In Lenders I, the trial court entered an order certifying a class action in which the court’s conclusions of law provided, in pertinent part, as follows:
9. The legal requirements of commonality, numerosity, typicality, and adequacy have all been clearly and convincingly demonstrated.
11. The common issues raised in the Plaintiffs complaint would predominate throughout the class, and a class action is the superior method with which to address the issues raised in this case.
Lenders I, 353 Ark. at 347.
The Lenders I court found that the trial court’s order, like the order entered in BPS, supra, “\fell\ short of the requirements of Rule 23,” because it did not state what the trial court found to be the questions of law or fact that were common to the class, nor did it explain why or how the common issues would predominate over individual issues, or why a class action would be the superior method for adjudicating the claims. Id. (emphasis added).
Our court further rejected an argument, raised by appellee Chandler in Lenders I, that requiring such an analysis conflicted with other Arkansas cases that refused to require the trial court to “conduct a rigorous analysis before certifying a case as a class action.” Id. at 348. Quoting Mega Life, 330 Ark. at 269, 954 S.W.2d at 901, the Lenders I court wrote the following:
We have consistently maintained that the trial court is not required to conduct a rigorous analysis before it may certify a case as a class action. The fact that we have refused to adopt such a strict standard, however, does not mean that there is no standard at all. The trial court must undertake enough of an analysis to enable us to conduct a meaningful review of the certification issue on appeal. At a minimum, this requires more than a cursory mention of the six criteria or bare conclusions that those criteria have been satisfied. The trial court cannot simply rubber stamp the complaint.
Lenders I, 353 Ark. at 349 (emphasis added).
In the present case, applying the holdings in BPS and Lenders I, it is plain to see that the trial court’s order is insufficient. In addition to Baptist’s pre-order Rule 52 motion, both the plaintiffs and Baptist submitted proposed findings of fact and conclusions of law to the trial court prior to the entry of the class-certification order, as well as motions for additional, specific findings and conclusions after the court entered its order. However, as noted above, the order simply stated that “[t]he requirement of commonality concerning issues of fact and law is satisfied,” “[t]he requirement of predominance is satisfied,” and “[t]he requirement of superiority is satisfied.” While the trial court’s order recited ten findings of fact and seven conclusions of law, none of those findings or conclusions appear, at this stage, to satisfy this court’s precedents regarding an analysis of the Rule 23 factors. Stated another way, although the court’s order provides that “approximately 2000” patients each year sign an identical contract with Baptist, the order does not explain what the common issues of law or fact are, nor does it explain how or why those common issues predominate, or why a class action is a superior method of adjudicating the plaintiffs’ claims.
Both parties recognized failures in the written order certifying the class. Baptist, of course, disagreed with the merits of the ruling, suggesting findings of fact and conclusions of law that would have resulted in denial of the class-certification motion. The plaintiffs, on the other hand, specifically cited Lenders I, supra, pointing out to the trial court that the court was required to “make certain specific findings so as to give the appellate court adequate information to review the decision to certify.” Therefore, the plaintiffs asked the court to “make a few additional findings of fact to support its conclusions,” in order to “avoid the possibility of an appeal on this very issue, and the delays that would accompany a remand of the case for additional findings based on the record of the case.”
In rejecting both parties’ post-order requests for additional findings, the trial court declared that it had gone through the record and exhibits, and had “put the items down that [the court] thought were necessary for the class certification order.” Thus, the court stated that it was “denying both [parties’] motions [for additional findings under Rule 52], every paragraph of both of those motions.” The court entered its orders to that effect on January 27, 2006, stating that it was denying both motions for additional findings “[f]or the reasons stated in open court.”
The trial court’s decision was in error. The court was required to enter specific findings of fact and conclusions of law in response to Baptist’s Rule 52 motion, which was filed prior to the entry of the class-certification order. See Ark. R. Civ. P. 52(a); BPS, supra. Moreover, by denying the parties’ post-order motions and refusing to enter an order that provides the parties and this court with an analysis of the requirements of Rule 23 or specific factual findings of fact and conclusions of law pursuant to Rule 52, the trial court failed to comply with this court’s case law. Thus, we conclude that the trial court abused its discretion when it entered its insufficient class-certification order. Because we must reverse and remand on this point, we do not address Baptist’s other argument that the record does not support the criteria required for class certification under Rule 23.
Reversed and remanded.
The plaintiffs filed a supplemental complaint adding appellee Andre Hutson as an additional plaintiff and proposed class representative on July 27,2005.
The gist of the plaintiffs’ proposed findings was that Baptist was charging uninsured patients more than it charged insured patients or patients with Medicare coverage. Their theory was that 1) all class members signed a contract with Baptist agreeing to pay for medical services; 2) the contract did not specify a price for those services; 3) the contract should be construed to restrict Baptist to charging a “reasonable” price; and 4) by charging uninsured patients more than it charges insured patients, Baptist has breached the “reasonableness” provision of the contract. Moreover, the plaintiffs suggested that the trial court incorporate a conclusion of law on the predominance issue to the effect that“[t]he focal point of Plaintiffs’ action is the price, as defined or not defined, in the form-contract used for all admissions at Baptist— The resolution of this pivotal issue will either result in (a) the dismissal of Plaintiffs’ claims, or (b) a basis for determining damages.”
Baptist, on the other hand, suggested proposed findings of fact and conclusions of law that would have concluded that “individual factual issues” predominated over any common issues. Among other contentions, Baptist asserted that the trial court should find that, “because every patient’s medical condition necessitates different medical treatment, services, and supplies that are not known at the time of admission,” “the particular circumstances surrounding each class member’s bill would have to be analyzed” in order to “determine whether any particular class member had paid in excess of a ‘reasonable’ charge for each line item[.]”
On May 25, 2006, this court issued a per curiam in which it adopted certain amendments to Rule 23. Of specific import for the case at hand, Rule 23(b) was revised to incorporate the following sentence at the end of that subsection: “An order certifying a class action must define the class and the class claims, issues, or defenses.” (Emphasis added.) The Addition to Reporter’s Note, 2006 Amendment, comments on this addition as follows:
A new sentence has been added to the end of subdivision (b). As the cases make plain, the certification order must define the class in sufficiently definite terms so that the court and the parties may identify the class members. [Citation omitted.] Identifying the claims, issues, and defenses will likewise help in identifying class members and expedite the resolution of the litigation. The amendment tracks existing Arkansas law and the federal Rule. This amendment does not alter the precedent holding that the circuit court is not required to perform a rigorous analysis of the case at the certification stage. E.g., THE/FRE, Inc. v. Martin, 349 Ark. 507, 514, 78 S.W.3d 723, 727 (2002). But the circuit court must “undertake enough of an analysis to enable [the appellate court] to conduct a meaningful review." See Lenders Title Co. v. Chandler, 353 Ark. 339, 349, 107 S.W.3d 157, 162 (2003).
Addition to Reporter’s Notes, 2006 Amendment (emphasis added). Thus, this court’s case law, as reflected in Lenders Title and BPS, has now been incorporated into the rule itself, and this will hopefully help litigants and courts avoid precisely this sort of issue in the future. | [
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Betty C. Dickey, Justice.
Albert Kieth Smith appeals his conviction of forty years for one count of kidnapping, and life without parole for one count of capital murder, from the Benton County Circuit Court. He alleges multiple errors by the circuit court, which include: (1) failing to dismiss for want of jurisdiction or failing to submit the jurisdiction issue to the jury; (2) failing to direct a verdict in favor of Appellant based on the insufficiency of the evidence; (3) permitting the State to impermissibly shift the burden of proof to Appellant; (4) failing to properly instruct the jury with regard to the evidence that was not admitted for the truth of the matter; and, (5) permitting the State to introduce prior “bad acts.” We conclude that his appeal is without merit, and affirm.
Background
On September 18, 1999, the body of an unidentified white man was found in McIntosh County, Oklahoma, in the right-of-way of Interstate 40. The body was positively identified on September 20, 1999, as that of David Douglas Howard. Howard had been shot in the back of the neck, and two .22 caliber bullets were recovered from his body. Howard was a fifty-six year old, single man who had lived in Bella Vista and managed the Loch Lomond Marina. Appellant’s involvement with Howard is best understood by reviewing, in a chronological order, Smith’s relationship with his wife, Linda, in the months preceding the crimes.
Linda Smith had been married to Albert Kieth Smith for twenty-eight years, and, according to Linda, their marriage had become “platonic.” She and Smith had their own computers, and Linda began looking at online websites on hers after learning about them from her daughter. In June of 1999, Smith and Linda decided to separate; however, for financial reasons, they continued living in the same house in Van Burén.
With the help of a co-worker and friend, William Dunn, Smith installed a program on Linda’s computer that kept track of her keystrokes so that he could access the password to her AOL email account. Although they were separated, Smith was upset about Linda’s communication with other men, and, at some point in the summer of 1999, he printed twenty to twenty-five emails involving communication between Linda and other men. Smith took those emails to Mikeal Bates, who was a detective in the Criminal Investigation Division at that time. Bates looked at the emails and listened as Smith told him that he had put the Stealth program on Linda’s computer in order to view her computer activity. Smith asked Bates to speak with Linda and tell her to stop emailing other men, whereupon Bates suggested marriage counseling to Smith.
On July 19, 1999, Smith set up an email account using the alias “jccart.” Smith not only told Dunn about this account, but Dunn saw the name jccart as it appeared on several of the emails he had written Linda. Not only Linda received emails from a jccart account, but also Herbert Hawkins, one of the men with whom Linda had chatted online, received an email on July 22, 1999, from a jccart account warning him to stay away from Linda Smith. The Stealth Keyboard Interceptor Program installed on Linda’s computer would, without her knowledge, send Smith’s computer copies of every email that she sent or received. Smith filed for divorce on July 29, 1999. Although surprised when Smith filed for divorce, Linda accepted the situation and moved out of the house she shared with Smith on August 13, 1999.
There were two other men besides Hawkins with whom Linda Smith frequently exchanged emails, Robert Glendinning of Jacksonville, Florida, and David Howard, the victim in this case. The evidence suggests that Smith was trying to gather information on these men. Linda testified that Smith had a Sam’s card and would buy pre-paid phone cards. She admitted that they occasionally shared the phone cards while she lived with Smith, but testified that she did not use them after she moved out. The evidence shows that calls were placed from Smith’s calling card in an attempt to track down Mr. Glendinning. A call was also placed from that calling card to the Loch Lomond Marina, where David Howard was employed. In addition, internet searches for Robert Glendinning’s address were entered on Smith’s computer.
In an email exchange on August 10, 1999, Linda and David Howard discussed meeting one another. That same day, Linda received emails from the jccart account mentioning Howard. One email read, “How about David is he going to be more competition for me,” and the other stated, “Maybe I don’t have the right to be jealous, but I am anyway. I hope you don’t start anything with David.” Linda was still unaware that the jccart account had been registered on Smith’s computer, thinking jccart was a stranger on the internet who had somehow hacked into her computer. She received another email from jccart on August 11, 1999, stating “I will try to stop monitoring your email account, although it will be hard to do knowing all of your other friends.”
While Smith was not a hunter and did not collect guns, his Visa was used to purchase a Marlin .22 caliber rifle, with scope and ammunition, at the Van Burén Wal-Mart on August 11,1999. The next day, a call was placed from Smith’s new cell phone to the Loch Lomond Marina, and Linda received an email from the jccart account regarding Howard coming to stay with her on Sunday night and Monday. The email warned her that Howard was out every night with a different woman and that she should use a condom to be safe. On August 14, 1999, Smith’s work records from his job as a mail carrier for the U.S. Postal Service revealed that he took the day off. His Visa was used on that day for purchases from the Rogers Wal-Mart, and the purchases included a pair of binoculars, black jeans, a black long-sleeve shirt, and a pair of black shoes. A call was placed that night from Smith’s cell phone to Howard’s home phone number in Bella Vista.
On August 15, 1999, Linda and Howard met in person for the first time, and he spent that night at her apartment. Smith’s work records for that day indicate that he had the day off, and his computer later revealed that he had spent time that day researching different poisons. During this time period Linda was still communicating with Robert Glendinning, the man from Florida. Smith’s computer also revealed that he emailed Glendinning on August 17, 1999, stating that “there is more at stake here than you can imagine.” In addition, Smith’s Visa records indicate more purchases at the Van Burén Wal-Mart, including a one-half inch white nylon rope. Two days later, August 19, 1999, Smith purchased a new white van, although his truck was fairly new with low mileage. The van’s license plate read 535DMK.
David Howard and Linda decided that she should visit Howard at his home in Bella Vista on August 21, 1999. Smith’s work records show that he again took a sick day on the same day, and his cell phone records reveal that calls were made to Howard’s place of employment. The calls to the Loch Lomond Marina were connected through the nearest cell tower, indicating that the calls were placed from Bella Vista. That night, Smith’s Visa revealed a purchase of a nine-and-a-half inch stainless steel knife at the Van Burén Wal-Mart, and Smith’s calling card showed three calls were placed to Howard’s home.
On August 23 and 25, 1999, Smith again took leave from work. His Visa records indicate that he rented a car at Hertz in Fort Smith on August 23, 1999, and that he made a purchase from the Exxon in Little Rock on August 24, 1999. Later that day, the license tag on Smith’s van, 535DMK, was run by law enforcement authorities in Greenville, Mississippi, and Smith’s Visa records revealed a purchase at the Exxon in Loxley, Alabama. Smith went to Jacksonville, Florida, where Robert Glendinning lived. His calling card showed another call to Howard’s home in Bella Vista on August 24. On August 25, Smith’s Visa was used at a Chevron station in Baldwin, Florida, and his calling card was used from a pay phone at the Hardee’s in Neptune Beach, Florida, to call Robert Glendinning. Smith finally reached him, but could not convince Glendinning to meet him.
Linda and David Howard made plans for another date at Howard’s home in Bella Vista on August 26, 1999. On August 27, Smith missed another day at work, and on that same day, rented a car from the Hertz location in Springdale. In addition, several phone calls were placed from his cell phone indicating that he was in the Rogers, Bentonville, and Bella Vista area. Two calls were made to Loch Lomond Marina, and calls were also placed to Howard’s home. Smith took a sick day at work on August 30, 1999, and, that same day, he ordered the book, “How to Make a Silencer for a .22.” The book was to be shipped to an Albert Smith in Van Burén. Smith ordered eight more books pertaining to gun silencers on September 1, 1999. The order called for overnight delivery. On that same day, a call was again placed to Howard’s home from Smith’s cell phone, going through a cell tower in Bella Vista, indicating that the call originated from there. On September 2, 1999, another call from Smith’s phone to Howard’s home was placed, this time from the north Fort Smith area. The same day, David Howard drove to visit Linda and spent the night at her apartment.
On September 3, 1999, Smith was not working and rented another car from Hertz. More calls from Smith’s phone to Linda suggest that Smith was in the Bella Vista area. Three days later, on Monday, September 6, 1999, calls were placed on Smith’s calling card from the All In 1 Market, located near the Sonic in Bella Vista. Smith’s phone also indicated a three-minute phone call to Howard’s home at 5:19 p.m. At 6:28 p.m., Howard sent Linda an email regarding their plans for the upcoming weekend. He informed her that he had “run into complications for Saturday night” and had been “offered a job opportunity” and needed to “be back in Bella Vista by 7 p.m. on Saturday night.” Linda and Howard spoke about the email later and Linda testified that he was supposed to meet someone near the Sonic in Bella Vista. Howard told her that he had been contacted by a man named Billy Martin, whom he believed to be a recruiter for people who wanted Howard to build a new marina in an undisclosed location. Bill Dunn testified that he and Smith actually had worked with a postal carrier named Billy Martin, indicating that Smith knew an actual person by that name.
Smith told Linda that he planned to travel on Saturday, September 11, 1999, and would not return until September 17. Smith rented another car from the Springdale Hertz location on September 10, and on September 11, he placed two calls on his calling card. One call placed him in Springdale at 6:46 p.m., and the other placed him in Seminole County, Oklahoma, at 10:51 p.m.. Finally, at 1:18 a.m. on September 12, Smith again used his calling card, placing a call from Marietta, Oklahoma. Several of Howard’s communications relayed that he traveled a similar route that night when he was with the recruiter, whom he knew as Billy Martin. Linda spoke with Howard on Sunday, September 12, and testified that he had been very frustrated as something had gone wrong with his trip. However, he informed Linda that he intended to get back with the recruiter at a later date. The evidence indicated that Howard had also been seeing other women and that he had shared his belief with them, as well as Linda, that building a marina was a future business opportunity for him.
On September 12, 1999, Smith told Linda, his son, and his daughter-in-law that he was about to do some traveling to Mississippi with a girlfriend, Rebecca. However, nobody ever saw Rebecca or even believed that she existed. What is known is that Smith bought a new computer at Best Buy in Fort Smith and then charged a room at the Howard Johnson Motel in North Little Rock on his Visa later that same day. The next day, September 13, 1999, a Ruger .22 pistol and ammunition were purchased from Midsouth Guns and charged to Smith’s Visa. Smith called his friend Bill Dunn when he had trouble getting his computer to work, and, after speaking with Dunn, he was able to get the computer hooked up to the Internet from his motel room. On September 14, 1999, searches for information on silencers and poisons were entered on this new computer.
Around the same time, Howard called two people in an attempt to get information on a white van with an Arkansas license plate of 535DMK. Chief Wozniak of the Bella Vista Sheriffs Office testified that Howard asked him to run the tag because he had seen a white van around the marina. However, Chief Wozniak told him that he could only run checks for law enforcement purposes. Layla Wheeler testified that Howard had also asked her to run that very same tag. Wheeler was told that Howard wanted the tags run because he was being recruited by someone to build a marina, but the individual would not give him a company name and would not reveal much about himself, except to say he was driving a company car. Howard wanted to see to whom the car was registered. Layla Wheeler finally ran the tags for him, but it was after Howard had been murdered.
Smith checked out of the Little Rock Howard Johnson Motel on September 15, 1999, and saw his chiropractor in Fort Smith the same day. That afternoon, Howard left work at the Loch Lomond Marina. At 5:45 p.m., he emailed Linda Smith for the last time, informing her that he was to meet the recruiter at six o’clock at the Sonic in Bella Vista and would probably be gone for several hours. Investigators later found a notepad at Howard’s house beside his computer, with a few notes jotted on it, “Billy Martin, marina, build, license number of car, AR535DMK, meet six o’clock Allen’s parking lot by Sonic, one hour away 9/15/99.” Days later, Howard’s Blazer was towed away from where it had been parked near the Sonic.
On September 16, 1999, the day after Howard was to meet the recruiter, Smith called Linda and informed her that he was back in town. Linda was worried about Howard because she had not heard from him. Smith offered to bring dinner to Linda’s home. When she allowed Smith to come, he kept telling her that he was tired and had taken a sleeping pill. Smith fell asleep on the floor and Linda decided to leave him there and went to her bedroom to go to sleep. Linda’s computer records indicate that at 4:22 a.m. on September 17, the Stealth program that had been monitoring her computer activity was deleted and was sent to the recycle bin of her computer. Linda awoke around 6:30 a.m., and Smith was already up and about to leave her apartment. Linda attempted to contact Howard but was unsuccessful, and, that same day, he was reported missing by a co-worker. On September 18, 1999, the body of David Howard was discovered in Oklahoma. On January 22, 2004, more than four years later, Smith was arrested and charged in Benton County, Arkansas, with the capital murder and kidnapping by deception of David Howard.
Sufficiency of the Evidence
Smith contends that the trial court erred by not granting his motion for a directed verdict, and challenges the sufficiency of the evidence supporting his convictions. More specifically, he alleges that the evidence was merely circumstantial and did not exclude every other hypothesis consistent with his innocence.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We have repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Although Smith did not raise his sufficiency challenge until the second point on appeal, double jeopardy considerations require this court to consider it first. See Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006); Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). However, as noted by the State, Smith did not make a proper directed-verdict motion. The following motion was made to the court at the close of the State’s case:
We move for a directed verdict on insufficiency of the evidence. On the whole the evidence is too speculative and too conjectural to submit to the jury. As you know, a jury should decide the case only on the hard facts and all we have here is speculation masquerading us back and conjectural masquerading us back and theory masquerading us back, so we would move for a directed verdict.
At the close of the trial, Smith renewed his motion as follows:
Our directed verdict motion we premised much upon the same thing. That is, if the court doesn’t bounce this for jurisdiction, then the court should look at the state of evidence and again acknowledge that insufficient evidence was presented insofar as the kidnapping is concerned, because the evidence that the judge did admit was admitted with the admonition that it is not being offered for the truth [of] the matter. We once again have a situation where there is no affirmative evidence that the alleged kidnapping occurred.... I would incorporate everything said on the jurisdiction argument into our motion for directed verdict and to dismiss for insufficiency of the evidence.
[Tjhere is no evidence of a kidnapping or murder for this jury to consider and it would be allowing the jury to speculate and base their verdict on speculation and conjecture.
Judge, for the purpose of the record, we would reiterate and incorporate our previous motions word for word and line for line for everything that has been said in our written motions previously filed, as well as our motions presented at the initial end [sic] of the State’s case, at the end of our case, and we would incorporate all of those, and without belaboring, I would just like to incorporate them by reference.
Where a motion for directed verdict is made, Arkansas Rule of Criminal Procedure 33.1 requires that it specifically state how the evidence is deficient. See Ark. R. Crim. P. 33.1(a). Rule 33.1 further provides that the failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required by the rule will constitute a waiver of any question pertaining to sufficiency of the evidence. See Ark. R. Crim. P. 33.1(c) (emphasis added). Smith’s motion was improper, in that “[a] motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.” Ark. R. Crim. P. 33.1(c). The motion must specifically advise the trial court as to how the evidence was deficient. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). The reason underlying this requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion, or, ifjustice requires, allowing the State to reopen its case to supply the missing proof. See Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). This court has repeatedly held that it will not address the merits of an appellant’s insufficiency argument where the directed-verdict motion is not specific. See Nelson, supra; See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). Smith’s directed-verdict motion was a surface objection insufficient to preserve the argument for appeal. Therefore, we will not address the merits of the sufficiency argument.
Jurisdiction
Smith contends that the trial court erred in failing to dismiss for want of jurisdiction or for failing to submit a jury instruction, proffered by Smith, that would have instructed the jury that the State bore the burden of proving jurisdiction beyond a reasonable doubt. Smith’s main objection is that the evidence is insufficient to prove that the murder took place in Arkansas, especially considering that the body of David Howard was discovered in Oklahoma. In addition, Smith argues that the issue of jurisdiction should not be determined by a trial court, but that the State should have to prove jurisdiction beyond a reasonable doubt to the satisfaction of a jury.
The Arkansas Criminal Code instructs that jurisdiction is one of four elements that must be proven beyond a reasonable doubt to convict someone of an offense. See Ark. Code Ann. § 5-l-lll(a) (Repl. 2006). However, Ark. Code Ann. § 5-1-111(b) creates a presumption in favor of jurisdiction where the charge is actually filed by the State. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). Section 5-l-lll(b) states:
(b) The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.
Before the State is required to put on evidence to prove jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). In the instant case, there was only evidence that the body was found in Oklahoma. There was no positive evidence presented that the crime actually occurred outside of Arkansas. In addition, this court has said that any state in which an essential part of the crime is committed may take jurisdiction, as it is not essential that all of the elements of the crime charged take place in Arkansas. Id. The record in this case provides ample substantial evidence that, at the very least, the premeditation and deliberation element of capital murder, see Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 2006), or the act of kidnapping by deception, see Ark. Code Ann. § 5-11-101(3) and § 5-ll-102(a)(4) (Repl. 2006), occurred in Arkansas. Therefore, we conclude that this argument has no merit.
Burden of Proof
Smith contends that the trial court erred by allowing unredacted custodial statements made by Smith into evidence. He argues that in doing so, the court allowed the State to impermissibly shift the burden of proof to him. The particular statements Smith is opposing are comments that were made in response to his being asked by investigators how he could convince them that he is not guilty with the evidence they had against him. Smith contends that with those statements being admitted, the State was able to shift the burden of proof to him to prove his innocence.
While Smith is correct in that he may not be expected to disprove his guilt, this court does not find that the admission of Smith’s custodial statements had the effect of shifting the burden of proof. In fact, the trial court correctly instructed the jury that the State had the burden of proof beyond a reasonable doubt, and that Appellant was not required to prove his innocence. While a statement made in custody is presumptively involuntary, the State must prove that it was given voluntarily and was knowingly and intelligently made in order for it to be admissible. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005). Smith is not arguing that a waiver of his Miranda rights was by intimidation, coercion, or deception. While Smith could have remained silent, he chose to speak with the investigators and his statements were admissible, like any other evidence, as pieces of the puzzle that might help the jury determine Smith’s guilt or innocence. For these reasons, we conclude that this argument is without merit.
Jury Instructions
Appellant contends that the trial court erred in failing to instruct the jury with regard to evidence that was not admitted for the truth of the matter asserted. Several evidentiary items were admitted in trial that were offered for reasons other than the truth of the matter asserted. A number of these exhibits required an admonishment to the jury for the evidence to be considered for purposes other than the truth of the matter asserted. Smith admitted that the court did admonish the jury at the time that the exhibits were introduced. However, he now argues on appeal that the trial court erred by not instructing the jury again at the conclusion of the evidence. First, this argument was not supported by case law in Appellant’s brief. An argument unsupported by convincing argument or authority, whose merit is not apparent without further research, cannot support reversal. See Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). Secondly, as noted by the State, jurors are presumed to comprehend and follow the instructions given to them by the court. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Smith has not made a convincing argument that the court erred by not giving certain instructions more than once. For these reasons, this court rejects this argument.
Prior Bad Acts
For his last point on appeal, Smith argues that the trial court erred in permitting the State to introduce certain testimony and certain items found in his home. He contends that the evidence consisted of “prior bad acts” that should have been excluded by the court under Rule 404(b) of the Arkansas Rules of Evidence, and that the evidence possessed no similarity to the crimes for which he was convicted. The State argues that the court did not abuse its discretion by admitting evidence: that Appellant possessed a brief case that contained a map of the Southeastern United States, a rope, and a knife; that he went to Florida where one of his ex-wife’s internet contacts lived; and that the contact from Jacksonville, Florida, Robert Glendinning, had received email about Linda Smith by a person with a jccart account name.
The admission of evidence under Arkansas Rule of Evidence 404(b) is left to the sound discretion of the circuit court and will not be disturbed absent a manifest abuse of discretion. Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2006). Howard, the victim in the case, had been a friend of Smith’s ex-wife whom she met on the internet. Evidence that Smith had contacted Glendinning, another contact of his ex-wife, to discourage a relationship with Linda, that he had traveled to Florida, and possessed rope and a knife in a brief case with a map of the Southeastern United States could be indicative of Smith’s intent, motive, or planning regarding the men his ex-wife had befriended. This court has held that, when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Furthermore, the State is entitled to produce evidence showing circumstances that explain the act, show a motive, or illustrate the accused’s state of mind. Armstrong, supra, (citing Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004)). For this reason, we find that the circuit court did not abuse its discretion in admitting this evidence.
Rule 4-3 (h)
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Smith. No prejudicial error was found.
Affirmed.
Appellant abstracted the three phrases “us back” to read “as fact,” which makes more sense in context; however, it is not how the record reads. (R. 4533) | [
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Per Curiam.
AppeEant Stacy Tubbs has filed a motion to substitute privately retained counsel, James Bennett, in place of his court-appointed attorney, Robert Jeffrey, to represent him in his appeal pending before this court.
In the present case, the motion to substitute counsel was filed by Bennett. Jeffrey has heretofore not filed a motion to withdraw, as required by Rule 16 of the Arkansas Rules of Appellate Procedure — Criminal, stating reasons for the attempted withdrawal. Moreover, he has continued to act, both prior to and subsequent to the present motion, on Appellant’s behalf. Thus, we deny the motion without prejudice to it being refiled.
Furthermore, we take this opportunity to note that this motion falls within an area of concern addressed by the court of appeals in Brewer v. State, 66 Ark. App. 324, 992 S.W.2d 140 (1999), and Brewer v. State, 64 Ark. App. 372, 984 S.W.2d 65 (1998). Both of these cases discussed a perceived abuse in the process of obtaining appeal transcripts on the part of indigent defendants who were represented by court-appointed counsel and were, therefore, permitted to obtain trial transcripts at the expense of the State and, thereafter, employed privately retained counsel to represent them on appeal. In the present case, just as in the Brewer cases, we are concerned with Appellant’s recent ability to obtain private counsel after his use of a court-appointed attorney and State funds to obtain his transcript for appeal.
Denied without prejudice. | [
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Jim Hannah, Chief Justice.
A Pulaski County jury convicted appellant Mark McKeever of three counts of committing a terroristic act. He was sentenced to ten years’ imprisonment for the first terroristic act, ten years’ imprisonment for the second, and five years’ imprisonment for the third. Additionally, McKeever was sentenced to multiple firearm enhancements pursuant to Ark. Code Ann. § 16-90-120 (1987). For reversal, McKeever argues that the circuit court erred in excluding relevant testimony from his mother regarding threats to his life. He also argues that the circuit court erred in sentencing him to multiple firearm enhancements. We find no reversible error and, accordingly, we affirm.
The testimony at trial revealed the following facts. On the night of March 12, 2005, Larry Anderson, Ettana Weatherspoon, and Adrian Thompson were out driving. As they drove by the intersection of 19th and Oak in Little Rock, they spotted an acquaintance of Anderson’s named Xavier. They stopped in the middle of the street to speak to Xavier, at which point, according to Anderson’s testimony, McKeever approached the car and shot at them. Anderson was not struck, but his companions were. They managed to drive down the road a short distance, at which point Anderson ran to his grandmother’s house for help. Anderson testified that nobody in the vehicle had a gun, and that nobody shot except for McKeever.
McKeever was the sole witness for the defense. He told the jury that in the weeks leading up to the shooting, he had been involved in an argument with Thompson, and that he feared for his life and for the safety of his family. McKeever testified that on the evening of the shooting, he was standing in the street in front of his mother’s house when he saw Thompson, Anderson, and Weatherspoon drive up. According to McKeever, Thompson had a gun in his lap. McKeever stated that he saw Thompson fumbling with the gun. McKeever testified that he was “in shock” and fired three shots into the car.
McKeever first stood trial in this matter on September 13-14, 2005. That trial resulted in a mistrial due to a hung jury. During his first trial, McKeever’s mother, Tina Curry, testified about several separate threats to her son’s life that she had received on her cell phone. First, she testified that Larry Anderson and Adrian Thompson, two of the eventual shooting victims, called her and told her that her son was not safe in the neighborhood, and that they were going to kill him. Second, she testified that a computer-generated voice said, “I’m going to get your son.”
At the retrial, the State moved in limine to exclude Curry’s testimony regarding the computer-generated voice. The objection was as follows:
Deputy Prosecuting Attorney: As to Ms. Curry, she testified that she received threats on her phone. One of those threats was a computer-generated voice. We would object to her testifying to that. I didn’t object last time. We were in the midst of trial and just simply for strategic reasons didn’t want to look like we were trying to hide anything, but that’s blatant hearsay to talk about a threat, there was a message left on her phone that was a computer-generated voice. She has no idea who left that message, and I am going to ask that she specifically not be allowed to testify to the threat. Only if she recognized the voice as a person she knew should she be able to testify to a threat.
Defense Counsel: I think she should be able to testify to a threat she received on her own voice — on her own voice mail. She can’t say who. I think it’s important for her to be able to tell the jury she played this threat that she received to the police officers.
Deputy Prosecuting Attorney: But it’s irrelevant if she can’t say who it’s from. It could have been Bill Gates, T.P., anybody, anybody that might have a beef with her son or a beef with her. That’s irrelevant. It’s prejudicial. She can’t say who that threat came from; therefore, it has absolutely no relevance to this. It’s their theory that self-defense — and, furthermore, if Mr. McKeever was unaware of those threats, it would be less relevant or not relevant at all, I should say. So I am objecting specifically to the computer-generated voice threat that she claims was on her phone and any threats if she cannot specifically identify the voice.
The Court: Okay. I will grant the motion.
Defense Counsel: Note my objection, Your Honor.
The Court: I’ll note your objection. Anything further?
The defense did not call Curry to testify during its case-in-chief, but renewed its objection to the trial court’s ruling, as follows:
Defense Counsel: Sorry, Your Honor, I forgot to — I must renew my motion based on the fact that Tina Curry would testify to if the Court allowed. The Court had said she could not testify as to the threats. I would renew my motion based on the same grounds that she be allowed to testify to that since the messages were on her voice mail.
McKeever argues that the circuit court erred in excluding Curry’s testimony because the testimony about threats to his life was relevant to his claim of self-defense. In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of that discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Additionally, this court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (2005). All relevant evidence is admissible, except as otherwise provided by statute or court rule. Ark. R. Evid. 402. Evidence which is not relevant is not admissible. Id. Pursuant to Rule 401 of the Arkansas Rules of Evidence:
“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.
Self-defense in Arkansas is defined in pertinent part as follows:
(a)(1) A person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.
Ark. Code Ann. § 5-2-606 (Repl. 1997). McKeever argues that, under this standard the reasonable belief of the defendant is paramount and, thus, threats communicated from the victim to the defendant are relevant to show the reasonableness of the defendant’s belief that harm to himself is imminent.
McKeever states that the relevance of such threats is clear, and the fact that, in this case, one of the threats was computer-generated should go only to the weight, not the admissibility, of the threat. McKeever also states that his credibility was a central issue in this case. He avers that at the first trial — the one in which the jury hung — his testimony that he was frightened for his life was considerably buttressed by his mother’s testimony about the threats she received. He argues that even if computer-generated, the threat greatly illuminates his state of mind prior to the shooting and drastically changes the tenor of his claim of reasonable belief that he was in danger.
We agree with McKeever that the circuit court’s exclusion of the evidence was in error; however, we will not reverse because McKeever has failed to demonstrate that he was prejudiced by the circuit court’s ruling. It is important to note that only the testimony concerning the computer-generated threat was excluded. The State did not move in limine to exclude Curry’s testimony about the threats she received from Larry Anderson and Adrian Thompson. Thus, it follows that the circuit court’s ruling did not exclude that testimony, and McKeever could have elicited that testimony from Curry. McKeever’s objective — to buttress his own testimony with his mother’s testimony about the threats she received — could have been accomplished by calling his mother to testify about the threats she received from Larry Anderson and Adrian Thompson. McKeever failed to present a proffer or otherwise show how he was prejudiced by the exclusion of testimony regarding the computer-generated voice when he could have put Curry on the stand to testify to the voice threats she could identify.
McKeever’s second point on appeal is that the circuit court erred in sentencing him to multiple firearm enhancements under Ark. Code Ann. § 16-90-120. In this case, McKeever was accused of having fired three shots into a vehicle and wounding two of the vehicle’s three occupants. For this conduct, he was charged with three separate counts of committing a terroristic act under Ark. Code Ann. § 5-13-310(a)(l) (Repl. 1997). The State then sought and received jury instructions allowing the jury to fix three separate firearm enhancements pursuant to Ark. Code Ann. §16-90-120.
“[A] person commits a terroristic act when, while not in the commission of a lawful act, [h]e shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers[.]” Ark. Code Ann. 5-13-310(a)(l) (Repl. 1997). In this case, McKeever shot three successive bullets into a car using one firearm, and during one incident. McKeever acknowledges that committing a terroristic act is not a continuous-course-of-conduct crime, and that the three shots may be properly charged as three separate crimes. See McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999) (holding that appellant’s firing three shots into an apartment constituted three separate terroristic acts for the purpose of Ark. Code Ann. § 5-13-310).
McKeever argues that this court must determine whether a sentencing court under Ark. Code Ann. § 16-90-120 can sentence an offender to serve multiple firearm enhancements for one incident. He contends that it does not necessarily follow that once conduct is charged as three separate crimes, then the State can automatically get three enhancements stacked one on top of the other.
The issue before the court is one of statutory interpretation. The basic rule of statutory interpretation is to give effect to the intent of the legislature. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. In addition, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Id.
The firearm-enhancement statute, Ark. Code Ann. § 16-90-120, provides in relevant part:
(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.
(Emphasis added.)
The plain language of the firearm-enhancement statute shows that the legislature intended for it to apply to “any offense ... in addition to any fine or penalty provided by law as punishment for the felony itself.” Ark. Code Ann. § 16-90-120. In the instant case, McKeever committed three separate criminal offenses, and each of those three offenses was committed with a firearm. As such, each of the offenses was subject to a sentence enhancement under Ark. Code Ann. § 16-90-120.
Still, McKeever argues that in pulling a gun and firing at the car, he committed only one act that the legislature sought to punish under the firearm-enhancement statute — that is to say, he used one firearm in one violent incident. Thus, he appears to contend that since he used only one firearm in one incident during the commission of three separate offenses, he is subject only to one enhancement. We disagree. This court rejected a similar argument in Welch v. State, 269 Ark. 208, 599 S.W.2d 717 (1980). In that case, appellant argued that the punishment for each of the three offenses could not be enhanced under the firearm-enhancement statute because all three offenses were parts of a single criminal episode. We stated:
Even so, the robbery and the two rapes were separate offenses, each of which could have been committed with or without a firearm. No double jeopardy is involved, because there is no constitutional barrier to the enhancement of the separate punishment for each of three distinct crimes, all of which were committed with a firearm.
Welch, 269 Ark. at 212, 599 S.W.2d at 720. Likewise, in the instant case, each terroristic act was a separate offense, each of which could have been committed with or without a firearm. Each of the three distinct crimes was committed with a firearm; thus, each crime was subject to enhancement. The circuit court did not err in sentencing McKeever to multiple firearm enhancements under Ark. Code Ann. § 16-90-120.
Affirmed.
Glaze and Dickey, JJ., concur. | [
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